Kenya Railways Corporation & 2 others v Okoiti & 3 others
The bottom line
#Supreme Court expunged a replying affidavit filed nearly two years late without leave, but allowed late submissions.
What this practically means
#The Supreme Court of Kenya ruled on a dispute about late filings. It struck out a replying affidavit filed almost two years late without permission and no good excuse. However, it allowed written submissions that were only a few days late because the other party was not harmed. A cross-appeal was also allowed because it was filed on time. The court refused to strike out the main petition, finding it was properly filed. The ruling balances following rules with avoiding strict technicalities.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st respondent's replying affidavit dated May 17, 2022 should be expunged from the record for being filed without leave and after inordinate delay.
- 2.Whether the 1st respondent's written submissions dated May 18, 2022 and May 26, 2022 should be expunged.
- 3.Whether the 1st and 2nd respondents' cross-appeal dated August 10, 2020 should be expunged for being filed out of time.
- 4.Whether the 1st petitioner's petition and supporting affidavit should be struck out for lack of proper authorization and non-compliance with procedural rules.
- 5.Whether the 1st petitioner's supporting affidavit sworn on June 6, 2022 was properly commissioned.
Key legal issues
#Whether a replying affidavit filed without leave and after inordinate delay should be expunged.
Yes, the replying affidavit was expunged because it was filed almost two years after the petition, without leave, and no plausible justification was given for the delay.
The court found that the 1st respondent filed its replying affidavit on May 20, 2022, nearly two years after the petition was filed on July 22, 2020, without seeking leave. This constituted inordinate delay, and no justification was offered. The court, guided by its inherent jurisdiction and the need to ensure orderly proceedings, ordered the affidavit expunged.
Whether late-filed submissions should be expunged.
No, the submissions were not expunged because they were filed only a few days late and the opposing party suffered no prejudice.
The court distinguished between the inordinate delay in filing the replying affidavit and the minor delay in filing submissions. Citing its power under Rule 53 of the Supreme Court Rules to extend time, and the principle in Article 159(2) of the Constitution against undue reliance on procedural technicalities, the court declined to expunge the submissions.
Whether a cross-appeal filed within the stipulated time should be expunged.
No, the cross-appeal was properly on record as it was filed within the 30-day period required by Rule 47(2)(b) of the Supreme Court Rules, 2020.
The court examined Rule 47(2)(b) and found that the cross-appeal was filed within thirty days of service of the petition. It was also duly served via email. Therefore, there was no basis to expunge it.
Whether a petition and supporting affidavit should be struck out for alleged procedural defects.
No, the application to strike out the petition was dismissed as unmerited.
The court found that the 1st petitioner's supporting affidavit was properly commissioned by an advocate who was a Commissioner for Oaths, and the petition was duly executed by an authorized officer. The court dismissed the 1st respondent's objections as lacking merit.
Legal principles established
#- A replying affidavit filed without leave and after inordinate delay without justification will be expunged.
- Late-filed submissions may be allowed if the delay is minor and the opposing party suffers no prejudice.
- A cross-appeal filed within the prescribed 30-day period under Rule 47(2)(b) of the Supreme Court Rules will not be expunged.
- Courts have power to extend time under Rule 53 of the Supreme Court Rules, guided by Article 159(2) of the Constitution.
- Procedural technicalities should not be relied upon unduly; the court will consider the substance and fairness.
- A petition and supporting affidavit properly commissioned and authorized will not be struck out on procedural grounds.
Court orders
#- 1.The 1st petitioner's application dated June 6, 2022 is allowed only to the extent that the 1st respondent's replying affidavit dated May 17, 2022 is struck off.
- 2.The 1st respondent's application dated July 5, 2022 is dismissed.
- 3.There shall be no order as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Civil Appeal No. 1 of 2020
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Expungement of the 1st respondent's written submissions dated May 18, 2022 and May 26, 2022
The submissions were filed only a few days past the court's direction and the 1st petitioner did not suffer any prejudice.
Expungement of the 1st and 2nd respondents' cross-appeal dated August 10, 2020
The cross-appeal was filed within the time stipulated under Rule 47(2)(b) of the Supreme Court Rules, 2020 and was duly served.
Striking out the 1st petitioner's petition dated July 21, 2020 and its submissions dated March 15, 2021
The application was not merited.
Expungement of the 1st petitioner's supporting affidavit sworn on June 6, 2022
The advocate who commissioned the affidavit was a valid Commissioner of Oaths.
Costs
There shall be no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is our considered opinion that this is inordinate delay and no plausible justification was advanced by the 1st respondent for such delay. Consequently, we expunge the said affidavit from the court record.
We however find that the 1st respondent's written submissions dated May 18, 2022 and May 26, 2022 were filed only a few days past the court's direction and the 1st petitioner did not suffer any prejudice therefore, the prayer to expunge the said documents is dismissed.
Further, Rule 47 (2) (b) of the Supreme Court Rules, 2020 requires the cross-appeal to be filed within thirty days of service of the petition, therefore, the cross-appeal was filed within the time stipulated and the same was also duly served upon the petitioner through email, as a result, the prayer to expunge it from the court record is dismissed.
It is our view that the 1st respondent's application to strike out the 1st petitioner's petition dated July 21, 2020 and its submissions dated March 15, 2021 is not merited.
Therefore, the petitioner's supporting affidavit was properly attested to. Consequently, we dismiss the prayer to have the said affidavit expunged from the record.
The 1st petitioner's application dated June 6, 2022 is allowed only to the extent that the 1st respondent's replying affidavit dated May 17, 2022 is struck off.
The 1st respondent's application dated July 5, 2022 is dismissed.
There shall be no order as to costs.
Key timeline
#Practical implications
#Strict deadlines for substantive filings
Lawyers must ensure that substantive documents like replying affidavits are filed on time or seek leave with a clear justification. This ruling shows that delays of nearly two years without excuse will lead to expungement. However, minor delays in submissions may be forgiven if no prejudice results. Always comply with Rule 53 and Article 159(2) to balance procedural compliance with fairness.
Manage litigation timelines carefully
Businesses in litigation should insist that their legal teams file documents promptly. A late affidavit can be struck out, potentially harming your case. The court is somewhat flexible on minor delays in submissions, but do not rely on that. Always get permission if you are late and document the reasons. This ruling encourages compliance while avoiding harsh penalties for small mistakes.
File court documents on time in Kenya
If you are a party in a Supreme Court case, you must follow deadlines. Filing a response nearly two years late without permission will be rejected. But if you are only a few days late with written arguments, the court may still accept them if you caused no harm. Always ask for an extension if you need more time. The court balances rule-following with fairness.
Frequently asked questions
#What happens if you file a court document late in Kenya?+
In Kenya, the court considers the delay and whether the other party is harmed. In this case, a replying affidavit filed nearly two years late was struck out. But written submissions only a few days late were allowed because no prejudice. Always seek leave and give a good reason.
Can a cross-appeal be filed after the deadline in Kenya?+
The Supreme Court of Kenya requires a cross-appeal to be filed within 30 days of being served with the petition. In this case, the cross-appeal was filed within that time, so it was not expunged. If you miss the deadline, you may be out of court.
How does the Supreme Court of Kenya handle procedural mistakes?+
The court follows Article 159(2) of the Constitution, which says to avoid undue reliance on technicalities. However, it still enforces key rules. A major delay without justification is punished, but minor delays causing no harm may be overlooked.
What is the effect of a replying affidavit filed without leave in Kenya?+
In Kenya, if you file a replying affidavit without the court's permission and after a long delay, it will likely be expunged. In this case, the affidavit was filed almost two years after the petition with no justification, so the court removed it from the record.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Scorpion Properties Ltd & another v Mody & 8 others; Mody (Plaintiff to the Counterclaim); Scorpion Properties Limited & 4 others (Defendant to the Counterclaim) (Environment and Land Case Civil Suit 2156 of 2007 & 196 of 2015 (Consolidated)) [2025] KEELC 1489 (KLR)[2025] KEELC 1489 (KLR)24 Mar 2025
Cite this brief
#Cite this brief
Caselaw, "Kenya Railways Corporation & 2 others v Okoiti & 3 others", Case Analysis (2022). Petition (Application) 13 (E019) of 2020 & Petition 18 of 2020 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/68/eng@2022-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.