Njango & another v Kinuthia & another (Environment and Land Case E177 of 2024) [2025] KEELC 5269 (KLR)

6. It is for this reason that the Applicants have filed the instant Application seeking a chance to file a Replying Afidavit to the Application and since they claim to have a triable defence with high probability of success. 7. The Court directed the parties to file and exchange brief submissions. At the time of writing this Ruling none of the parties had filed their submissions. 8. Every party has a right to access any Court or Tribunal to have its dispute heard and determined in accordance with Article 50(1) of the Constitution of Kenya, 2010. Even where a party delays in doing an act, there is always a provision that would give it reprieve to seek justice. 9. Notably, Order 50 Rule 6 of Civil Procedure Rules, 2010 empowers the Court to enlarge the time to do a particular act. The said Order 50 Rule 6 of Civil Procedure Rules stipulates as follows:“ Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the Court, the Court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the Application for the same is not made until after the expiration of the time appointed or allowed: Provided that the costs of any Application to extend such time and of any order made thereon shall be borne by the parties making such Application, unless the Court orders otherwise.” 10. While considering whether or not to grant an order for extension to do any act, the Court was also required to consider if the opposing side would sufier any prejudice if extension of time was granted. This Court did not see any prejudice that the Respondent would sufier or was likely to sufier if the Applicants herein exercised their constitutional right to be heard by filing the Replying Afidavit out of time. If there was any prejudice, the Court is not able to know or address it since the Respondents did file any response to the Application. 11. Taking all the factors hereinabove into account, it was the considered view of this Court that it was in the interests of justice (emphasis Court) that the Applicants be given an opportunity to have their Replying Afidavit admitted on record after paying the requisite fees to enable them participate and canvass the Plaintifis’ Application dated 18/10/2024. They should also be heard on merit as they would sufier prejudice if they were denied an opportunity to fully present their response to the Application and to be heard on merit. 12. Indeed, the power to grant orders in the interest of justice and/or for the ends of justice (emphasis Court) is well captured in Section 3A of the Civil Procedure Act that states:“ Nothing in the Act shall limit or otherwise afiect the inherent power of the Court to make such orders as may be necessary for the ends of justice (emphasis Court) or to prevent abuse of the process of the Court.” Disposition 13. For the foregoing reasons, the upshot of this Court’s decision is that Notice of Motion Application dated 3/04/2025 is merited and the same be and is hereby allowed in terms of Prayer No (3) and (4) therein on the following conditions:i. That the Court arrests the scheduled delivery of this Court’s Ruling on 07/07/2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5269/eng@2025-07-07 2

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ii. The Replying Afidavit dated 3/04/2025 filed out of time is admitted on record upon the Applicants paying the requisite fees. Thereafter the Applicants are to serve the Replying Afidavit upon the Plaintifis not later than 7 days from the date hereof. iii. The cost of this Application to be borne by the Applicants. iv. The Plaintifis are directed to file their submissions to the Notice of Motion Application dated 18/10/2024 and serve the Respondents within 14 days of this Ruling and the Defendants upon service have corresponding leave to file their responses. v. Mention to take a Ruling date shall be on 2/10/2025. Orders Accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 7TH DAY OF JULY 2025 VIA MICROSOFT TEAMS. …………………… MOGENI J JUDGE In the presence of: Ms. Mong’are for the 1st and 2nd Plaintifis/Respondents Ms. Ndung’u for the 1st and 2nd Defendants/Applicants Mr. Melita – Court Assistant …………………… MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5269/eng@2025-07-07 3

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