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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the interested party should be granted leave to file his replying affidavit to the judicial review application out of time
- 2.Whether the intended replying affidavit improperly addresses the merits of a judicial review matter
- 3.Who bears costs of the application
Key legal issues
#Whether counsel's innocent mistake in failing to file a response in time is excusable
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
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.
Legal principles established
#- A mistake by counsel should not be visited on the client by denying the party a hearing on the merits
Court orders
#- 1.The interested party granted leave to file his replying affidavit to the application dated 21/5/2021 out of time
- 2.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
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.
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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.