https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4933

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT KERUGOYA** **ELCL PET NO. E001 OF 2026** **CHARITY WANGUI NJIRA & 7 OTHERS ……….………… PETITIONERS** **VERSUS** **NATIONAL IRRIGATION AUTHORITY &** **3 OTHERS ……………………………………………..…….. RESPONDENTS** **RULING** 1. When this matter came up for mention on the 28th July 2026, to inter alia confirm compliance with the directions issued on 11th May 2026, and fix a date for judgement, Mr. Ngaywa, the learned counsel for the 1st & 2nd respondents, made an oral application for leave to have the supplementary affidavit sworn by Dennis Maina Okinyi, the 2nd respondent, on 23rd July 2026 and 1st & 2nd respondents’ written submissions dated 23rd July 2026, that were filed on 27th July 2026 outside the time given and without leave, admitted as properly filed. Counsel submitted that the delay in filing the said documents was occasioned by counsel who was in conduct of the matter going an early maternity leave on 10th July 2026, without properly handing over the file. That counsel only got to know the status on the file on 20th July 2026 when the chambers was preparing the files cause-listed for this week, and he tendered apologies to the other counsel and the court for the delay in the filing of the said documents. 1. The application was vehemently opposed by Mr. Wamae, the learned counsel for the petitioners, who inter alia submitted that any documents filed outside the time given and without leave is improperly before the court and should be struck out. Counsel referred to the proceedings of 11th May 2026, and pointed out that the 1st & 2nd respondents have been delaying this petition by failing to file their documents timeously, thereby prejudicing the petitioners. He added that he had done an email in early July 2026 to the 1st & 2nd respondents’ counsel, reminding them of the coming mention date and asking to serve with their submissions but received no response. That he only saw the supplementary affidavit sworn on 23rd July 2026 and the submissions of the same date on the CTS portal that morning as they had not been served upon. 1. Mr. Muriithi, learned counsel for the 4th respondent, submitted that they had complied by filing and serving their replying affidavit and submissions. He left the issues of whether or not to admit the supplementary affidavit and submissions filed by counsel for the 1st & 2nd respondents to the court’s discretion, but added that should they be admitted, the 4th respondent would be seeking for leave to file and serve further submissions. 2. That having carefully considered the rival oral submissions by counsel for the parties herein, and upon perusing the previous proceedings, especially that of 11th May 2026, the court has come to the following conclusions: 1. That this proceeding was commenced on the 29th January 2026 through the petition dated the 28th January 2026 that was filed contemporaneously with notice of motion under certificate of urgency of even date. The application was certified urgent on the 30th January 2026 and directions on service, filing of replies and inter parties hearing date of 12th February 2026 issued. By the hearing date, only the 4th respondent had filed and served replies. The application was orally heard and reserved for ruling on the 11th March 2026. In its ruling of 11th March 2026, the court directed inter alia that the parties maintain and preserve the current status quo by ensuring no further dealing is undertaken that affects or is likely to affect the legal status of the suit property. The court also directed that the hearing of the petition be expedited. The parties who had not filed their replies to the petition were directed to do so in 21 days with corresponding leave to the petitioners to respond to any new issues of facts. * 1. During the subsequent mention of 11th May 2026, Mr. Muchiri, and Mr. Muriithi learned counsel for the petitioners and 4th respondent were present. Also present was one Ms. Jemtai advocate, who told the court that their firm had received instructions to come on record for 1st & 2nd respondents on 30th April 2026 but that they were yet to file the notice of appointment. The court heard counsel present and directed as follows: 1. *“The 1st & 2nd respondents are yet to enter appearance or file any reply and the intended counsel is yet to file a notice of appointment and therefore has no right to address the court.* 2. *However, the 1st & 2nd respondents are granted the rest of the day before close of business to file and serve replies.* 3. *The petition be canvassed through written submissions to be filed and served in three days by the petitioners, and seven days after service by the respondents.* 4. *Further mention on 28th July 2026.”* 2. The record confirms that subsequent to the directions of 11th May 2026, a notice of appointment of advocate for the 1st & 2nd respondents’ counsel dated 11th May 2026 and a replying affidavit sworn by Dennis Maina Okinyi, 2nd respondent, on 11th May 2026 were filed on 12th May 2026 at 18:49:49. The replying affidavit was filed outside the time specified in the order of 11th May 2026, which had specified it be filed before close of business that same day. That delay was for about a day, and as the counsel for the other parties have not raised any objection to its late filing, the court will take it to be properly on record. * 1. The record also confirms that after the directions of 11th May 2026, the counsel for the petitioners filed their submissions dated the 19th May 2026, while counsel for the 4th respondent filed theirs dated 20th May 2026. The submissions by the petitioners were filed outside the three days given on 11th May 2026, but as no counsel has raised any protest, I will take it to have been properly filed. 2. As confirmed in (c) above, the 1st & 2nd respondent filed their replying affidavit sworn on 11th May 2026 on the following day, 12th May 2026. It is obvious the orders of 11th May 2026 could not have addressed the issue of leave for the 1st & 2nd respondents to file a supplementary affidavit as by that time their counsel had not filed a notice of appointment, and they had not filed any replies to the petition. It follows that if 1st & 2nd respondents discovered there were other documents they wanted to file through a further affidavit subsequent to the filing of their replying affidavit on 12th May 2026, they ought to have contacted the other parties’ counsel to obtain their concurrence first or move the court without delay for appropriate leave. Instead of doing either of the foregoing, they waited until 23rd July 2026 when they had a supplementary affidavit commissioned and filed with submissions of the same date on 27th July 2026 at 23:25:51, which was a few minutes to the 28th July 2026 which is the date the matter was coming to court. The claim made by the learned counsel for the 1st & 2nd respondents that the late filing of the supplementary affidavit and submissions was due to the counsel in conduct of the matter taking an earlier maternity leave on 10th July 2026 does not in any case explain the failure to comply with the timelines set in the order of 11th May 2026 before that date. * 1. There is no evidence presented to confirm that the said supplementary affidavit was served upon counsel for the petitioners and 4th respondent. In any case, there was no three clear days from its filing to the date of court appearance and its filing is in contravention of the **Civil Procedure Rules.** To admit the supplementary affidavit at this stage will occasion more delay, as the petitioners and 4th respondent will not have an opportunity to address its contents through their submissions, which were filed on the 19th & 20th May 2026 respectively. The supplementary affidavit sworn on 23rd July 2026, having been filed late and without leave, is therefore for striking out. 2. The order of 11th May 2026 had directed that the respondents were to file and serve their submissions in seven days after being served with the petitioners’ submissions. That as I have admitted the petitioners’ submissions though it was filed late, I will also take the 1st & 2nd respondents' submissions that were filed late as properly filed, on condition that any part of that submissions that have addressed the contents of the supplementary affidavit will be struck out and disregarded. 1. In view of the above conclusions, the court finds and orders as follows: 1. **That the supplementary affidavit sworn on 23rd July 2026, and filed through the leaned counsel for the 1st & 2nd respondents on 27th July 2026 is struck out for being filed late and without leave of the court.** 2. **That the 1st & 2nd respondents’ submissions dated 23rd July 2026 and filed on 27th July 2026 is taken as properly on record, save that any part therein addressing the contents of the struck-out supplementary affidavit will be equally struck out and disregarded***.* 3. **That the court will proceed to fix a date for judgment.** It is so ordered. **DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 30TH DAY OF JULY 2026.** **S. M. Kibunja** **ELC JUDGE** **In the presence of:** Petitioners –Mr. Wamae Muchiri Respondents – Mr. Nyaywa for 1st and 2nd Respondents Kinyua/Charles - Court Assistant **S. M. Kibunja** **ELC JUDGE**