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

(ii) Corresponding leave was granted to the applicants to file a further affidavit, if need be, within 3 days. (iii) The application was listed for oral arguments on 28/7/2026. 2. When counsel in conduct of this matter appeared before me on 28/7/2026, Mr. Obok for the 1st and 2nd respondents indicated to the Court that he filed a replying affidavit out of time and served it upon the other parties on 24/7/2026. The learned counsel sought the Court’s leave to have it deemed as properly filed and to be admitted on record. 3. This application was strenuously opposed by Mr. Omulama for the applicants. Counsel submitted that ORIGINAL COPY any pleadings filed without leave of the Court is a nullity and that leave cannot be sought retrospectively. The learned counsel referred this court to 6 judicial authorities he had filed, including Kiru Tea Factory Company Ltd vs Stephen Main Githiga & 13 Others [2019] eKLR, Suleiman Said Shabhal vs I.E.B.C. & 3 Others [2014] eKLR, Dado vs Godhana & 2 Others 2023] KECA 869 KLR. Counsel further submitted that the court was specific on the time each party was to file its pleadings and urged the court to strike out the replying affidavit filed by the respondents. RULING: KITALE ELC NO. E007 OF 2026 - D.O.D. – 25/09/2026 2

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4. In a rejoinder, Mr. Obok for the respondents urged the court to overlook the minor infractions of the late filing and admit the replying affidavit onto the court record in the interests of justice. Counsel further cited the case of Nicholas Salat (Supra) and observed that courts have been cautioned against relying on infractions that do not occasion a miscarriage of justice. 5. I have carefully considered the rival arguments by counsel as well as the judicial authorities cited by Mr. Omulama, for which I am grateful. 6. To put this matter into the perspective in which these arguments arose and in respect of which I made this brief ruling, the applicants’ claim before ORIGINAL COPY this court is founded on the provisions of Section 38 of the Limitation of Actions Act, which espouses the doctrine of adverse possession. They contend that the estate of the late Apollo Ongoma is entitled by adverse possession to be registered as the proprietor of Land Reference Number 33457/6 situate in Trans Nzoia County in place of the 1 st respondent company. 7. In pursuit of this claim, the applicants filed a Notice of Motion dated 22/6/2026 seeking witness summons to issue to the Chief Land Registrar to attend court and produce the original government RULING: KITALE ELC NO. E007 OF 2026 - D.O.D. – 25/09/2026 3

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records relating to the suit property. This is the application at hand, which is opposed by the respondents. 8. This is the application in respect of which directions were issued for the parties to file responses within the timelines of 10 and 3 days, respectively. 9. In giving strict timelines, the court desired to hear the said application and retire to render a ruling during the court’s August vacation to pave way for the hearing of the Originating Summons which had been certified ready for hearing. 10. From the court’s directions herein captured, the respondents were to file a response to the application by close of business on 16/7/2026, yet ORIGINAL COPY the replying affidavit was filed on 24/7/2026. It is on this basis that the applicants moved the court through counsel on record to have the said replying affidavit struck out for being filed out of time and without leave of court. 11. I have had occasion to read through the judicial authorities from the superior courts. For clarity and evidence of doubt, they are binding upon this court. 12. The golden thread running through the said judicial authorities is that a party cannot take refuge under the oxygen principle or Article 159(2)(d) of the Constitution to defeat statutory timelines which RULING: KITALE ELC NO. E007 OF 2026 - D.O.D. – 25/09/2026 4

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regulate the filing and exchange of main and further pleadings. 13. However, a careful look at those judicial authorities will also reveal that they are distinguishable from what is before me, on two fronts: One, the directions of the court to the parties to file a replying and further affidavit within 10 and 3 days respectively were not made pursuant to any statutory timelines or pursuant to any Procedural Rules or Regulations. Two, the court had granted leave to the parties to proceed in that manner, save that the respondents did not keep within the four corners of the 10 days that the court had granted them. That notwithstanding, ORIGINAL COPY the respondents’ counsel had a professional duty to comply with the court directions in the interests of justice and quick disposal of the application before the court. Needless to state, the learned counsel failed the court as well as his professional colleague on this duty. 14. That said, this court is prepared to look the other way to allow the respondents' replying affidavit, which was filed out of time. I choose to be guided by the provisions of Article 159(2)(d), which enjoins me to focus more on substantive justice rather than the technicalities of RULING: KITALE ELC NO. E007 OF 2026 - D.O.D. – 25/09/2026 procedure. 5

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However, I am minded to quip that my holding would have complained been of different were if anchored the in infractions an Act of Parliament or Procedural Rules imposing strict timelines. I would be bound by the judicial authorities cited by Mr. Omulama, learned counsel. 15. In choosing to look the other way and allow the late filing of the impugned replying affidavit, I am of the firm view that allowing the parties to ventilate all the contested issues before the court will help the court to establish the truth and, by extension, deliver justice. In the case of the State of South Dakuta vs Damm [1936] 266, NW 6167-71, Campbell, J. had this to say about the need to ORIGINAL COPY pursue the truth by giving all parties a chance to be heard: “The primary function of the judiciary is the administration of justice, and justice can never be rightly administered unless the truth be first ascertained as nearly as may be….” 16. I feel I have said enough to explain why my inclination is to admit on record the respondents’ replying affidavit filed on 24/7/2026 even though it was filed out of time. To balance the scales of justice, the applicants shall have their time to file a further affidavit, if need be, within such reasonable time as counsel will request. RULING: KITALE ELC NO. E007 OF 2026 - D.O.D. – 25/09/2026 6

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17. Thereafter, the court will hear the applicants’ Notice of Motion dated 22/6/2026 and quickly turn its focus on the Originating Summons herein filed. 18. It is so ordered. Ruling dated, signed, and delivered via Microsoft Teams/Open Court at Kitale on this 25th day of September 2026. In the presence of: Court Assistant - Matui/Nancy Mr. Omulama for the applicants Mr. Obok for the 1st and 2nd respondents ORIGINAL COPY HON. G.M. GITONGA JUDGE, ELC KITALE. RULING: KITALE ELC NO. E007 OF 2026 - D.O.D. – 25/09/2026 7

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