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ELCAllowednull (not stated in judgment)

Republic v Mbeere South Sub County Deputy Commissoner & 2 others; Ireri (Interested Party); Murage (Exparte Applicant) (Environment and Land Judicial Review Miscellaneous Application 6 of 2019) [2024] KEELC 3612 (KLR)

Environment and Land Court
12 March 2024
1,140 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a late replying affidavit, ruling that a lawyer's honest mistake should not cost a party their day in court.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Embu on a notice of motion dated 16th February 2023 by the interested party, seeking leave to file a replying affidavit to a judicial review application dated 21/5/2021 out of time, with costs in the cause. The interested party explained that counsel mistakenly believed a response had been filed, an oversight rather than a deliberate act. The ex parte applicant opposed, arguing the delay was inordinate because the interested party was engaged in activities calculated to defeat justice, and that the intended affidavit improperly addressed the merits of the judicial review, relying on Hunker Trading and Joseph Maritim. The respondents did not oppose the motion. The court found counsel's explanation forthright and the mistake excusable, distinguishing Joseph Maritim where the applicant lacked honesty. It examined the intended affidavit and found it responded mainly to the issues raised in the judicial review application rather than the merits. Relying on Philip Keipto Chemwolo v Augustine Kubende and Banco Arabe Espanol v Bank of Uganda, the court held that errors or lapses should not debar a litigant from a hearing on the merits. The court allowed the application, granting leave to file the replying affidavit out of time, and ordered costs in the cause. Judgment delivered at Embu on 12th March 2024.

Questions the Court framed

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

  1. 1.Whether the interested party should be granted leave to file his replying affidavit to the judicial review application out of time
  2. 2.Whether the intended replying affidavit improperly addresses the merits of a judicial review matter
  3. 3.Who bears costs of the application

Key legal issues

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01

Whether counsel's innocent mistake in failing to file a response in time is excusable

Holding

Yes - the explanation that counsel mistakenly believed he had responded was forthright and excusable; the party should not be denied an opportunity to be heard

Reasoning

The court found counsel's explanation of an innocent oversight credible and contrasted it with a prior case where the applicant lacked honesty. The intended replying affidavit was found to respond mainly to the issues raised in the judicial review application rather than the merits, removing the ex parte applicant's objection. Given the constitutional injunction against undue regard to procedural technicalities and the importance of the right to be heard, leave was granted.

p. 3

Legal principles established

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  • A mistake by counsel should not be visited on the client by denying the party a hearing on the merits

Court orders

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  1. 1.The interested party granted leave to file his replying affidavit to the application dated 21/5/2021 out of time
  2. 2.Costs in the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; sections 3, 18 and 19 of the Environment and Land Court Act No. 19 of 2011

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.

Blunders will continue to be made from time to time and it does not follow that because a mistake has been made a party should sufier the penalty of not having his case determined on its merits.
p. 3mistake of counsel and right to be heard
The upshot, in light of the foregoing, is that the merits of the application before me have been found to be demonstrated. I therefore allow the application. Costs in the cause.
p. 3disposition
I am not persuaded therefore that the interested party should be denied an opportunity to have his day in court. He has explained himself well and he should not be driven from the seat of justice.
p. 3access to justice

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, "Republic v Mbeere South Sub County Deputy Commissoner & 2 others; Ireri (Interested Party); Murage (Exparte Applicant) (Environment and Land Judicial Review Miscellaneous Application 6 of 2019) [2024] KEELC 3612 (KLR)", Case Analysis (2024). null (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3612/eng@2024-03-12

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