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ELCOtherELC No. E007 of 2026 (O.S.)· [2026] KEELC 5663 (KLR)

Beatrice Lwosi Ongoma & 2 Others v Chema Holdings Limited & 3 Others

Environment and Land Court
25 September 2026
1,327 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court allowed a late-filed affidavit because the missed deadline was set by the court, not by law.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kitale (G.M. Gitonga, J) determines an interlocutory dispute over a replying affidavit filed out of time. The applicants, legal representatives of the estate of the late Apollo Ongoma, prosecute an adverse possession claim under Section 38 of the Limitation of Actions Act seeking registration of the estate as proprietor of LR Number 33457/6 in Trans Nzoia County in place of the 1st respondent company. They filed a Notice of Motion dated 22/6/2026 seeking a witness summons to compel the Chief Land Registrar to produce original government records. The court directed responses within 10 days and further affidavits within 3 days. The respondents' replying affidavit was filed on 24/7/2026, eight days late, and counsel sought retrospective leave. The applicants, citing Kiru Tea Factory, Shabhal and Dado, urged that pleadings filed without leave are a nullity and sought striking out. The court held the binding authorities on statutory timelines were distinguishable because the timelines here were court-ordered, not statutory or regulatory. Invoking Article 159(2)(d), it admitted the affidavit, granted the applicants leave to file a further affidavit within reasonable time, and directed hearing of the motion followed by the Originating Summons. No costs order was made.

Key legal issues

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01

Whether late-filed replying affidavit should be struck out

Holding

The affidavit was admitted; the court distinguished the binding authorities because the timelines were court-ordered, not statutory

Reasoning

The court held that the authorities relied on by the applicants concerned statutory timelines or procedural rules. Here the 10-day and 3-day timelines were directions of the court itself, so Article 159(2)(d) allowed the court to admit the affidavit in the interests of substantive justice, while granting the applicants a further affidavit in response.

p. 5
02

Effect of breaching statutory timelines versus court-ordered timelines

Holding

Statutory timelines cannot be defeated by Article 159(2)(d); court-ordered timelines may be excused in the interests of justice

Reasoning

The court acknowledged the binding superior-court authorities that statutory timelines cannot be overridden by the oxygen principle, but held they were distinguishable. It noted counsel's professional duty to comply with directions and observed the holding would have differed had the infractions been anchored in an Act of Parliament or procedural rules.

Legal principles established

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  • A party cannot rely on the oxygen principle or Article 159(2)(d) to defeat statutory timelines regulating filing of pleadings
  • Article 159(2)(d) permits courts to overlook late filing of pleadings where the timelines breached are court-ordered rather than statutory

Court orders

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  1. 1.The respondents' replying affidavit filed on 24/7/2026 is admitted on record despite being filed out of time
  2. 2.The applicants may file a further affidavit, if need be, within such reasonable time as counsel will request
  3. 3.The Notice of Motion dated 22/6/2026 to be heard, after which the court will turn to the Originating Summons
Jurisdiction invoked
Article 159(2)(d) of the Constitution; Section 38 of the Limitation of Actions Act (underlying claim)

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, "Beatrice Lwosi Ongoma & 2 Others v Chema Holdings Limited & 3 Others", Case Analysis (2026). ELC No. E007 of 2026 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5663/eng@2026-09-25

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