Marriot Africa International Limited v Murigu & 3 others; Ukombozi Holdings Ltd (Interested Party); Kangaita Coffee Estates Limited (Counter Claimer); Trendseters Investments Ltd & 4 others (Defendant to the Counterclaim) (Environment & Land Case 4 of 2021) [2025] KEELC 1453 (KLR)
The bottom line
#Kenya's Environment and Land Court threw out documents and a witness filed late without permission, warning that springing evidence at the last minute amounts to litigation by ambush.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether this honourable court is seized of the requisite jurisdiction to validate pleadings; documents and witness statement filed out of time and without leave of the court
- 2.whether the adoption and deployment of the impugned pleadings, documents and witness statement shall occasion undue prejudice and grave injustice to the Plaintiff/2nd Defendant to the counterclaim or otherwise
Key legal issues
#Jurisdiction to validate documents filed out of time and without leave
The court lacks jurisdiction to validate such filings; they are a nullity. Leave must be obtained before filing out of time and does not issue as a matter of right.
Relying on the Supreme Court's decisions in Nicolas Kiptoo Arap Korir Salat v IEBC and County Executive of Kisumu v County Government of Kisumu, the court held that validating out-of-time filings without leave would amount to sanitizing an illegality. Compliance with statutory timelines is mandatory and a tenet of the rule of law. Counsel for the 4th and 5th Defendants did not even account for the failure to file within time.
Prejudice and the right to fair hearing
Admitting the impugned pleadings, documents and witness statement would occasion undue prejudice and grave injustice to the Plaintiff, whose witness had closed its case without knowledge of them.
The Plaintiff closed its case on 22nd February 2024, before the impugned documents were filed on 25th October 2024. The Plaintiff's witness had no opportunity to respond to the contents. Article 50(1) and (2) of the Constitution requires equal opportunity and fair hearing; discovery of documents is a critical tenet of fair trial, and springing evidence at the tail end is litigation by ambush.
Legal principles established
#- A party desirous to file any pleadings and/or documents out of time must obtain leave beforehand; documents filed without leave are a nullity incapable of validation.
- Late introduction of documents and evidence at the tail end of proceedings constitutes litigation by ambush and violates the right to fair hearing.
Court orders
#- 1.The Objection herein be and is hereby upheld.
- 2.The Statement of defence to the counterclaim; the list and bundle of documents and the witness statement filed by the honourable attorney general be and are hereby expunged from the record of the court.
- 3.The Intended witness by the 4th and 5th Defendants to the counterclaim is hereby barred from testifying.
- 4.Costs of the objection shall abide the outcome of the suit/proceedings.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court over pleadings and evidence before it; provisions of Article 10(2), 27(1)-(2), 50(1)-(2) and 159(2)(d) of the Constitution and Section 1B of the Civil Procedure Act were invoked
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.
Where a party proceeds to and files documents without leave, the documents so filed are a nullity and thus incapable of validation by a court of law.
the leave of the court does not issue as a matter of right. Similarly, there is no gainsaying that the leave of the court does not issue for the mere asking.
In the circumstance, the final orders that commend themselves to the court are as hereunder; i. The Objection herein be and is hereby upheld.
The Intended witness by the 4th and 5th Defendants to the counterclaim is hereby barred from testifying.
Issues in the judgment
#The case number of the suit is not disclosed anywhere in the judgment, and the parties' full names are not given; the brief identifies parties only by their roles.
The citation of Shollei v Judicial Service Commission is internally inconsistent - it bears a Petition number of 2014 but a 2022 judgment date, and it quotes from Kidero v Waititu, which is attributed to a concurring opinion by Njoki Ndungu SCJ.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marriot Africa International Limited v Murigu & 3 others; Ukombozi Holdings Ltd (Interested Party); Kangaita Coffee Estates Limited (Counter Claimer); Trendseters Investments Ltd & 4 others (Defendant to the Counterclaim) (Environment & Land Case 4 of 2021) [2025] KEELC 1453 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1453/eng@2025-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.