https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4276

Abila v Oloo (Environment and Land Case 18 of 2022) [2026] KEELC 4276 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 4276 (KLR) Republic of Kenya In the Environment and Land Court at Busia Environment and Land Case 18 of 2022 L Waithaka, J June 4, 2026 IN THE MATTER OF REGISTERED LAND ACT AND IN THE MATTER OF THE LIMITATION OF ACTIONS ACT AND IN THE MATTER OF THE REGISTERED LAND ACT CAP 300 LAWS OF KENYA AND IN THE MATTER OF L.R NO. BUKHAYO/BUGENGI/3607 Between Maurice Ojiambo Abila Applicant and Eddy Oloo Respondent Ruling 1.This ruling is in respect of the respondent/applicant’s notice of motion (application) dated 28th November 2025. The application is brought under Articles 159(2) (d) and (e), 48 and 51(1) of the Constitution of Kenya, 2010; Order 10 Rule 10, Order 51 Rule 1 of the Civil Procedure Rules and Sections 3A and 63(e) of the Civil Procedure Act. 2.Through the application, the respondent/applicant seeks leave to file his response to the suit (originating summons) in the manner indicated in the draft replying affidavit annexed to the application. 3.The application is premised on the grounds on its face and supported by the affidavit of the applicant sworn on 28th November 2025 on which the grounds on the face of the application are reiterated. 4.The applicant’s application is premised on the ground that he had filed a replying affidavit to the suit alongside his witness statement; that during trial of the case, his replying affidavit was struck out and expunged from the court record on the ground that it offended the provisions of Section 5 of the Oaths and Statutory Declarations Act; that the legal effect of the striking out his response to the suit is to render the applicant/respondent’s suit unopposed; that the mistake that led to striking out of the replying affidavit is not wholly blamable on the applicant hence ought not to be used to punish the applicant and that the applicant is desirous to have the originating summons heard on its merits. Further, that he would suffer irreparable loss if he is not given an opportunity to ventilate his case and to challenge the applicant/respondent’s case; that the application has been brought in good faith and that the respondent shall not suffer any prejudice if the order sought is granted as he will still have an opportunity to defend his claim of adverse possession. 5.In reply and opposition to the application, the applicant/respondent filed grounds of opposition and a replying affidavit both dated 28th January 2028, in which he inter alia contends that the applicant had all the time to file a proper defence to the originating summons at the time they were served with it; that during pre-trial, the applicant indicated that he was ready to proceed with the hearing based on what was on record at the time of taking directions; that both parties have since been heard and the parties respective cases closed; that the applicant is not seeking reopening of his case to warrant grant of the orders sought and that the applicant has violated the overriding objectives of Sections 1A, 1B of the Civil Procedure Act and Order 11 Rule 7(3) of the Civil Procedure Rules. Further, that the applicant cannot claim to have been denied the right to a fair hearing as he was served and afforded an opportunity to file his defence and to participate in the proceedings. 6.Terming the application scandalous, vexatious and an abuse of the court process, the respondent urges the court to dismiss it with costs to him. 7.The application was disposed of by way of written submissions. 8.In his submissions dated 15th April 2026, the applicant gives a brief overview of the circumstances leading to filing of the application and identifies the issue for the court’s determination to be whether this court should exercise its discretion to grant him leave to file his response to the originating summons out of time in the interest of justice and fair hearing. Regarding that issue, the applicant submits/addresses the court as follows:“…the principles governing the grant of leave to file a response (out of time) and generally defend a suit are now well settled. The court is implored to exercise unfettered but judicial discretion, taking into account the length of delay, the reason for the delay, the arguability of the intended response, the degree of prejudice to the opposing party and whether the application has been brought promptly and in good faith. Based on the decisions in the cases of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others (2014) e KLR (a decision of the Supreme Court) and Patel vs. East Africa Cargo Handling Services limited, Civil Appeal No. 2 of 1974 the applicant acknowledges that extension of time is not a right but an equitable right available to a deserving party who lays a proper basis and that the court’s primary concern is to do justice to the parties and to avoid shutting out a litigant where a bona fide triable issue(s) exist. 9.On the length of delay, the applicant points out that the ruling giving rise to the application was delivered on 18th November 2025 and the instant application filed barely 10 days thereafter, and submits that the application was brought promptly and in good faith, taking into account the circumstances that necessitated its filing. 10.Regarding the reasons for delay, the applicant acknowledges that the applicant is under a legal duty to give a rational, plausible, logical, convincing, reasonable and truthful reason for delay otherwise termed sufficient cause. 11.On what amounts to sufficient cause the applicant makes reference to the case of, The Hon. Attorney General v Law Society of Kenya & another, Civil Appeal (Application) No. 133 of 2011 (UR); the decision of the Court of Appeal of Tanzania in The Registered Trustees of the Archdiocese of Dar es Salaam vs. Chairman Bunju Village Government & Others Civil Appeal No. 147 of 2006 and the decision of the Supreme Court of India in the case of Parimal v Veena (2011)3 SCC 545 and submits as follows: -“…the gist of this application as presented in the affidavit in support thereof as read in tandem with the grounds upon which the application is predicated points to the fact that parties had complied with Order 11 and the suit set down for hearing. That it was when the applicant and his witnesses testified that the issue of the jurat sections of their respective replying affidavits came up, which was the subject of the ruling of 18th November 2025. The applicant has demonstrated his willingness and readiness to defend his position and to have the matter dealt with by promptly instructing his counsel to prefer this application. The mistake regarding the commissioning of the respective affidavits which led to their being struck out and/or expunged from the court record vide the ruling aforementioned were non-deliberate ones, which we implore this court to find excusable under the circumstances. We therefore implore your ladyship to allow the applicant defend the suit preferred against him in the interest of justice”. 12.As to whether the intended defence/response is arguable, the applicant submits/addresses the court as follows: -“…the law on adverse possession is strict and fact-intensive, requiring proof of continuous, open and exclusive possession for at least 12 years. Therefore, the proper way of assessing such claims is to look at the intention of the parties and the nature of possession…which would require full ventilation of evidence from both sides to enable the court adjudicate on the same and deliver complete justice to the litigants…as opposed to partial determination based on procedural exclusion. Put differently, the striking out of the applicant’s affidavit evidence, while procedurally grounded, should not be allowed to culminate in a final determination of rights as the respondent…wants the court to do, without hearing the applicant on the merits. This is the true import and spirit of the grundnorm through inter alia, the provisions of its articles 21(1), 25 (c), 47(1), 48, 50(1) and 159(2) (a) (d) and (e). …At paragraph 13 of his supporting affidavit, the applicant has exhibited and produced a draft copy of the response to the Originating Summons…We submit that the foregoing, coupled with other paragraphs in the said response and the documentary evidence to be adduced, raises fundamental issues of law and fact, which when given the opportunity sought, will ultimately demonstrate that the respondent …has not met the threshold for being conferred a title under adverse possession…” 13.Concerning the degree of prejudice to the opposing party, the applicant submits that the respondent has not in his reply indicated that he stands to suffer any prejudice if the orders sought are granted; that the prejudice to be occasioned on the respondent, if any, is compensable by award of costs and that he has demonstrated that it is in the interest of justice that the application be allowed. 14.With regard to the respondent’s contention that he closed his case, the applicant submits that he did not. Explaining that the application is not meant to delay justice but to participate meaningfully and restore balance after the procedural striking of his evidence, he submits that denial of the order sought would be tantamount to condemning him unheard, elevate procedure above justice and fundamentally risk a determination of ownership of land with hearing one party thereby occasioning irreversible prejudice on the party shut out. 15.In his submissions dated 11th May 2026, the plaintiff/respondent submits/addresses the Court as follows:-“…the right to a fair hearing is generally provided under Article 50 of the Constitution of Kenya. It entails being given a chance to present your case in a manner and style you desire before a decision is made. But this, we submit does not take away the requirement of strict compliance with procedure. From the record, the defendant was duly served with the suit papers, filed defence, participated in the plaintiff’s case and also called all his witnesses. With that on record, he cannot turn around and claim that he was not accorded a chance to be heard…The right to a fair hearing, we submit, does not take away the strict requirements to comply with procedure…The defendant in this case was accorded all the time to put in a proper defendant but neglected to comply with mandatory requirements of procedure and his defence was duly struck out hence he cannot rely on the provisions of Article 159(2)(d) of the Constitution of Kenya to benefit from the court’s discretion.” 16.The plaintiff/respondent further submits that having failed to file a proper defence and instead actively participated in the hearing until closure of the case, the applicant violated the overriding objective under Section 1A, 1B of the Civil Procedure Act and Order 11 7 (3) of the Civil Procedure Rules and hence not deserving exercise of the court’s discretion in his favour. 17.The plaintiff/respondent asserts his contention that the application is lacking in merits and urges the court to dismiss it with costs to him. 18.I have read and considered the application, the response thereto and the submissions by the parties. I have also considered the circumstances that led to filing of the application, which is that the applicant’s response/defence to the suit was struck out towards the tail end of the hearing of the case on the ground that the replying affidavit on which it was hinged was struck out by the Court for violation of mandatory provisions of the law. 19.Noting that the error or mistake that led to striking out of the affidavit is a question of law that is not purely attributable to the applicant in person but on failure on his advocates to ensure the law was complied with in getting the affidavit commissioned and taking account the legal impact of failure to give the applicant an opportunity to regularize the defect in his defence case, which is to render it incompetent for not being hinged on any pleadings, in the interest of justice, I allow the applicant to file a fresh replying affidavit, to address the issue that led to the striking out of his previous replying affidavit. For avoidance of doubt, the applicant shall not include any new issues to his replying affidavit but will strictly restrict the contents of the replying affidavit to the issues raised/addressed in his previous replying affidavit. 20.For the purpose according the plaintiff/respondent an opportunity to address issues in the applicant’s defence, I reopen the case for purposes of further cross examination of the applicant and his witnesses, if need be. 21.The upshot of the foregoing is that I allow the applicant’s application dated 28th November 2025 to the extent contemplated in this ruling. 22.Costs of the application shall abide the outcome of the main suit. 23.Orders Accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT BUSIA THIS 4TH DAY OF JUNE, 2026L. N. WAITHAKAJUDGEIn the presence of;-Mr. Ouru for the ApplicantMr. Ogola h/b for Mr Okello for the RespondentCourt Assistant: Tracy