https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3434

Mangi & 6 others v Noor (Environment and Land Case E003 of 2024) [2026] KEELC 3434 (KLR) (25 May 2026) (Ruling) Neutral citation: [2026] KEELC 3434 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Case E003 of 2024 FM Njoroge, J May 25, 2026 Between Charo Karisa Mangi & 6 others & 6 others & 6 others Plaintiff and Mohamed Osman Noor Defendant Ruling 1.This ruling is in respect of a Notice of Motion dated 29th April, 2026 which seeks the following orders:1.That this Honourable Court do grant the Defendant/Applicant herein leave to file documents out of time;2.Costs. 2.The application is supported by the affidavit of Mohamed Osman Noor and is based on the following grounds set out at its foot and which are also emphasized in that affidavit:a.The Plaintiffs gradually invaded the defendant’s property (hereinafter referred to as the suit property) at around the year 2012;b.They were partially evicted in the suit property through a court order in ELC Case No. 286 of 2016;c.They came back and constructed more illegal structures in the suit property thus leading to the instant case;d.The Defendant due to financial constraints managed to conduct a survey on 4/4/2026 and filed a surveyor’s report on 23/4/2026 for portion number 7652 Mtangani, Malindi;e.The report contains google earth photos showing an aerial view of the suit property on different time lines;f.The report is essential to aid the court reach a just determination in the instant matter;g.There is no prejudice that the Plaintiff will suffer if the court grants the orders sought herein;h.The defendant will suffer prejudice as the court will not get a chance to see the gradual steps the Plaintiff took to invade the suit property hence justice will not be served for failure to look into the instant report;i.The report has been filed in good faith and not meant to delay the administration of justice. 3.The replying affidavit of the plaintiffs was sworn by the 1st plaintiff, Charo Karisa Mangi, and is dated 15th May 2026. The deponent states that on 23rd April 2026 this court directed the applicant to file and serve the application within 7 days, and contrary to those directions, the applicant only filed the application only on 8th May 2026, well outside the prescribed timelines thereby flouting the court orders; that consequently this late filing has prejudiced orderly Case Management and expeditious disposal of these proceedings; that the applicants seek to introduce Google Earth photographs purporting to depict the state of the suit property over several years allegedly in support of a survey report; that as held in Republic versus Mark Lloyd Stevenson 2016 eKLR, the said photographs are inadmissible electronic evidence within the meaning of Section 106B of the Evidence Act Cap 80 of the Laws of Kenya as they have not been accompanied by the requisite certificate of electronic evidence nor authenticated by the maker; that in any event, reliance on Google earth photographs to depict the state of the suit property over the years is inherently inaccurate for various reasons listed in paragraph 10 of the replying affidavit (which this court has taken note of); that the Survey Report itself, if genuine, ought to be supported by official maps, cadastral records, and certified documentation from the Survey of Kenya offices rather than by speculative electronic images; that the applicant’s attempt to file the impugned document out of time is prejudicial to the fair trial of this matter as it seeks to introduce unreliable evidence contrary to the statutory safeguards and binding precedent. The plaintiffs seek that the defendant’s application be dismissed with costs. Analysis And Determination. 4.Having considered the application dated 29/4/2026 and the supporting affidavit as well as the replying affidavit dated 15th May 2026, I find that the main issue is whether the applicant ought to be allowed to file the proposed documents late. I have looked at the supporting affidavit and seen that these are the decree of this court in Malindi ELC No 286 Of 2016, the court bailiff report of 6th December 2021, the Surveyor’s Report dated 4/4/2026 and Google Earth maps. 5.The first objection to the application as raised by the plaintiffs is that court orders issued on 23/4/2026 were not complied with. It is the case that court orders must be obeyed otherwise there may be a breakdown of order in civil proceedings. The orders issued by this court on 23/4/2026 were to the effect that the defendant would file the application for leave to file the documents needed within 7 days from that date. Apparently, he was not able to do so within the time provided and he only filed the application on 8th May 2026, which delay has aggrieved the plaintiffs as elaborated on in their replying affidavit. 6.However, this court, even though not condoning the filing of the application outside the timelines it gave, is not aware of any legal provisions that expressly bar the filing of any interlocutory application at any stage of proceedings by any party where such need arises. Such applications are meant to aid the court and parties in preparing the suit for trial on its merits. The court may upon such an application issue order as may be appropriate. 7.In the present case, though the strictures as to time for filing the desired application were issued, they did not expressly or impliedly override the rights of the defendant to file the application, such that if the filing of the application was still intended, the court would look to the intent of the applicant rather than to the court imposed procedural technicality as to the time within which to file the application. The intent of the applicant herein can be deciphered as to present material upon which the court can rely in the determination of the present suit, which material he has recently become seized of. Under Order 51 Rule 14 of the Civil Procedure Rules, 2010, where an application has been served, it may be opposed by way of a Replying Affidavit, a statement of grounds of opposition or a Preliminary Objection or all of them. In the present case the plaintiffs have filed their Replying Affidavit and this court is thus able to consider the merits of their grounds of opposition to the application as contained therein. This court thus finds that it is still able to entertain the present application on its merits and do justice to the parties before the hearing date for the main suit regardless of the late filing. It will thus not strike it out. 8.Turning to the merits of the application, there are strictures as to the filing of documents by parties in civil litigation in Kenya. One cannot just file any document that they desire and at any time, especially where the procedural law, provides for filing within a given period, or where events have clearly taken place, such as a hearing, which make such filing impotent. It has been the case that courts disapprove of the filing of documents out of time and without leave of court. The Supreme Court of Kenya in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR held as follows:"What we hear the applicant telling the Court is that he is acknowledging having filed a ‘document’ he calls ‘an appeal’ out of time without leave of the Court. Pursuant to rule 33(1) of the Court’s Rules, it is mandatory that an appeal can only be filed within 30 days of filing the notice of appeal. Under rule 53 of the Court’s Rules, this Court can indeed extend time. However, it cannot be gainsaid that where the law provides for the time within which something ought to be done, if that time lapses, one need to first seek extension of that time before he can proceed to do that which the law requires. By filing an appeal out of time before seeking extension of time, and subsequently seeking the Court to extend time and recognize such ‘an appeal’, is tantamount to moving the Court to remedy an illegality. This, the Court cannot do. To file an appeal out of time and seek the Court to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the Court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this Court will not accept a document filed out of time without leave of the Court.” 9.It is clear that the applicant has, in view of the courts’ stance regarding the filing of documents out of time, chosen to first seek leave to file them out of time and which is the most commendable course of action. 10.The plaintiff’s second concern, besides the late filing of the application, is that the documents are inadmissible. With all due respect to their argument, this court is of the view that there is a world of difference between allowing documents to be filed and ruling that they have been proved as authentic and admissible in evidence at the hearing. What should happen if the present application is allowed is that the documents will be placed in the record, and be deemed to be there regularly rather than be deemed a nullity at the hearing, and then they can be tendered as evidence at the hearing. It is not unusual for documents to be left out, unproduced, at the hearing despite their being on the record. Filing of a document does not therefore mean that it has been admitted in evidence. 11.In the present case the defendant pleads that due to financial incapacity he was only able to have a survey conducted on the suit land on 4/4/2026 while this suit was filed in the year 2024. No one should be blamed or be shut out of the corridors of justice purely for his impecuniosity. 12.The applicant has managed to have the survey done before the hearing of the main suit has commenced. He has also brought to the attention of the court a decree of 2019 in Malindi ELC No 286 of 2016, ordering the eviction of certain persons who included the 1st plaintiff. 13.A decree is a public record to be proved in the usual manner. The proof of the Google Earth data proposed to be relied on is incumbent on the defendant alone in the case. It is the view of the court that the plaintiffs should not be allowed to raise objections as to admissibility even before the court has allowed the documents to be filed. What matters in this case is whether the court considers that the defendant’s proposal to file more documents has merit. 14.In assessing the merits of the present application, the court must be alive to the fact that it was constituted to do substantive justice and it must always where there would be no prejudice to any of the parties, or where the prejudice occasioned can be compensated with by way of costs, strive to achieve that purpose rather than dwell on procedural structures. Indeed, that is the spirit of Article 159(2)(d) of our Constitution. 15.In this court’s view, the present application having been made before the hearing of the case, it is clear that the plaintiffs will have the opportunity to examine the documents and raise any objections thereto in their own defence. Little, if any prejudice, would therefore be occasioned to the plaintiffs were the documents to be allowed at this stage. They can be compensated by way of costs of the application. Upon perusal of the proposed documents, this court finds they are related to the suit property and it is safer not to shut them out of the case lest it turn out they were vital. 16.This court thus is of the view that the application dated 29th April, 2026 has merit and the same is allowed as prayed in prayer no (1) thereof. The documents exhibited in the supporting affidavit shall be filed and served vide a supplementary list of documents within 14 days from the date of this order and this matter shall be mentioned on 24th September 2026 for pretrials. The costs of the application shall in any event be borne by the defendant. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 25TH MAY 2026.MWANGI NJOROGEJUDGE, ELC MALINDI.