Republic v Cabinet Secretary-State Department of Land and Physical Planning & 2 others; Otieno & 4 others (Ex parte Applicants); K’obil & 4 others (Interested Parties) (Judicial Review E006 of 2024) [2025] KEELC 6193 (KLR)

The court found that the applicants were granted leave on 6th May 2024 to file the substantive motion within 21 days but did not comply, and their subsequent motion was struck out. The delay question was comprehensively addressed in the ruling of 23rd April 2025 on the preliminary objection, which was never set aside. Only an appeal or a review, if merited, could disturb it. The alleged mistake of counsel was an unsubstantiated afterthought, since neither the client nor counsel acted within the leave period. Re-extending time would resurrect what the court had already declared dead.

The supporting affidavit was sworn by counsel on record alleging her own mistake, but the record showed documents were drawn on 30th May 2024, after expiry of the 21-day period, and nothing was done until 13th June 2024. The court held that mistakes of counsel must be genuine, honest and not adverted to; the failure to raise the mistake earlier, in response to the Replying Affidavit or before the preliminary objection was heard, undermined the claim. Blanket unsubstantiated allegations cannot sustain the equitable remedy of extension of time.

The court expressed concern that counsel swearing supporting affidavits compromises their neutrality vis-à-vis their duty to the court under section 1B of the Civil Procedure Act and professional ethics. Facts concerning acts of previous counsel are at best inadmissible hearsay unless supported by documentary evidence or apparent on the record. Allegations of mistake of counsel must be borne out by the advocate deposing to them, or by a letter owning the mistake.