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ELCPartially AllowedELC PET NO. E001 OF 2026· [2026] KEELC 4933 (KLR)

Njira & 7 others v National Irrigation Authority & 3 others (Environment and Land Petition E001 of 2026) [2026] KEELC 4933 (KLR)

Environment and Land Court
30 July 2026
SKS. M. Kibunja
1,659 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a late affidavit filed without leave, confirming that unexplained delay will not be excused.

What this practically means

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Executive summary

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This is an interlocutory ruling by S. M. Kibunja, ELC Judge, Kerugoya, in an Environment and Land Court petition, ELC Pet No. E001 of 2026, delivered virtually on 30th July 2026. At a mention fixed to confirm compliance with directions issued on 11th May 2026 and to fix a judgment date, counsel for the 1st and 2nd respondents sought leave to admit, as properly filed, a supplementary affidavit sworn by the 2nd respondent, Dennis Maina Okinyi, on 23rd July 2026 and the respondents' written submissions of the same date, both filed on 27th July 2026 outside time and without leave. Counsel attributed the delay to the counsel conducting the matter proceeding on early maternity leave from 10th July 2026 without a proper handover. Mr. Wamae for the petitioners opposed, noting prior delays by the respondents, lack of service, and that he had emailed the respondents' counsel in early July without response. Mr. Muriithi for the 4th respondent left the matter to the court's discretion. The court reviewed the procedural history, including the 11th May 2026 directions requiring same-day replies and submissions within set timelines. It found the respondents had not sought leave or the parties' concurrence, that the maternity leave excuse did not explain non-compliance with pre-leave timelines, that there was no evidence of service and no three clear days before the mention date, contrary to the Civil Procedure Rules. The court struck out the supplementary affidavit but admitted the late submissions on condition that any part addressing the struck-out affidavit be disregarded, and directed that a judgment date be fixed.

Key legal issues

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01

Admissibility of a supplementary affidavit filed out of time and without leave

Holding

The supplementary affidavit was struck out because it was filed late and without leave; the purported excuse of counsel's maternity leave did not explain non-compliance with earlier timelines

Reasoning

The court traced the chronology: the 11th May 2026 directions required replies by close of business that day, and no leave existed for a supplementary affidavit. Counsel for the 1st & 2nd respondents waited until 23rd July 2026, four days before mention, without seeking concurrence or leave. The maternity leave excuse could not explain failure to comply with timelines set before the leave began. There was also no evidence of service, and no three clear days from filing to the court date, contrary to the Civil Procedure Rules.

p. 7
02

Discretion to admit late-filed written submissions

Holding

The court exercised its discretion to admit the 1st & 2nd respondents' late submissions because it had admitted the petitioners' late submissions, but conditioned admission on striking out any part addressing the struck-out affidavit

Reasoning

The 11th May 2026 order required respondents to file submissions within seven days of service of the petitioners' submissions. Although the respondents' submissions were filed late, the court noted it had admitted the petitioners' own submissions which were also filed outside the three days allowed, and on the basis of even-handedness took the respondents' submissions on record, subject to excision of portions dealing with the struck-out supplementary affidavit.

p. 8

Legal principles established

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  • A party who wishes to file a further or supplementary affidavit must first obtain the concurrence of the other parties or move the court without delay for appropriate leave
  • Documents filed out of time and without leave are improperly on record and liable to be struck out

Court orders

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  1. 1.The supplementary affidavit sworn on 23rd July 2026 and filed on 27th July 2026 by the 1st & 2nd respondents is struck out for being filed late and without leave of the court
  2. 2.The 1st & 2nd respondents' submissions dated 23rd July 2026 and filed on 27th July 2026 are taken as properly on record, save that any part addressing the contents of the struck-out supplementary affidavit is equally struck out and disregarded
  3. 3.The court will proceed to fix a date for judgment

Authorities

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Legislation

  • Civil Procedure Rulesnot specified (service and filing timelines)
Jurisdiction invoked
Original petition jurisdiction of the Environment and Land Court (petition dated 28th January 2026 filed under certificate of urgency)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njira & 7 others v National Irrigation Authority & 3 others (Environment and Land Petition E001 of 2026) [2026] KEELC 4933 (KLR)", Case Analysis (2026). ELC PET NO. E001 OF 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4933/eng@2026-07-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.