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ELCAllowedEnvironment and Land Appeal 18 of 2022 (Formerly Migori ELC Appeal Number 29 of 2019)

Obiero v Ogola

Environment and Land Court
17 October 2023
GOGMA Ongondo
427 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 allowed a late-filed court response, prioritising fair hearing over strict filing deadlines.

What this practically means

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Executive summary

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This is a procedural ruling by GMA Ongondo, J of the Environment and Land Court at Homa Bay in an appeal by Joseph Obiero against Beatrice Ogola (formerly Migori ELC Appeal Number 29 of 2019). By orders of April 26, 2023, the court had directed that a Notice of Motion dated March 15, 2023 be heard by way of written submissions, with parties to file and exchange submissions within 42 days. The respondent sought leave of two days to serve her replying affidavit sworn on April 12, 2023 and filed on April 19, 2023, together with her submissions. The appellant's counsel opposed, arguing there was no response to the motion and that the appellant had filed and served submissions. The court held that the replying affidavit had been duly filed and that only time was needed to serve it alongside the respondent's submissions. Invoking Articles 48, 25(c) and 50(1) of the Constitution, sections 3 and 19 of the ELC Act, and the decision in James Kenyiita Nderitu v Marios Philotas Ghikas, the judge found merit in the application and allowed it. The respondent was granted two days to serve the replying affidavit; the appellant was granted 14 days from service to file a further affidavit and supplementary submissions; and mention was set for October 7, 2023 to confirm compliance and give directions. No costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent should be granted leave to file and serve her replying affidavit and submissions out of the timelines directed on April 26, 2023

Key legal issues

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01

Whether to grant leave to the respondent to serve a replying affidavit and submissions outside court-ordered timelines

Holding

Leave granted; the replying affidavit was already duly filed and the delay was minimal

Reasoning

The court noted the replying affidavit sworn on April 12, 2023 was filed on April 19, 2023 and that only time was sought to serve it alongside submissions. Guided by constitutional guarantees of access to justice and fair hearing, sections 3 and 19 of the ELC Act, and the Kenyiita Nderitu decision, the court found merit in the application and allowed it with consequential directions.

Legal principles established

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  • Courts should allow parties leave to comply with filing timelines in furtherance of access to justice and the right to a fair hearing

Court orders

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  1. 1.The respondent's counsel granted time to file and serve the replying affidavit duly filed on April 19, 2023 within the next two (2) days from that date
  2. 2.The appellant's counsel to file and serve further affidavit and supplementary submissions within 14 days from the date of service of the replying affidavit and respondent's submissions
  3. 3.Mention on October 7, 2023 to confirm compliance and for directions

The bench

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One judgment of the whole court — no separate or dissenting opinions.

GO
majority

Wrote the judgment

Jurisdiction invoked
Articles 48, 25(c) and 50(1) of the Constitution of Kenya 2010; sections 3 and 19 of the ELC Act, 2015

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the spirit of Articles 48, 25 (c) and 50 (i) of the Constitution of Kenya 2010, sections 3 and 19 of the ELC Act, 2015 (2011) and the decision in James Kenyiita Nderitu and another versus Marios Philotas Ghikas and another (2016) eKLR, I find merit in the respondent's application.
p. 2Access to justice and fair hearing as basis for granting leave
The respondent's counsel is granted time to file and serve replying affidavit duly filed on April 19, 2023 herein within the next two (2) days from this date.
p. 2Final orders - leave to serve replying affidavit

Issues in the judgment

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minor

Respondent's counsel named inconsistently

minor

Mention date precedes expiry of the 14-day filing window granted

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, "Obiero v Ogola", Case Analysis (2023). Environment and Land Appeal 18 of 2022 (Formerly Migori ELC Appeal Number 29 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20742/eng@2023-10-17

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