'BRIEF FACTS
The 4th Interested Party/Applicant filed the instant application dated 4th November, 2025 seeking the following orders:
1. Leave be and is hereby granted to the 4th Interested Party/Applicant to file the list of witnesses, witness statements and list of documents out of time.
2. The list of witnesses, witness statements and list of documents annexed hereto and marked as “EACC 1” and “EACC 2” collectively be deemed as properly and validly filed for all intents and purposes of these proceedings.
3. Costs of this application be in the cause.
The Application was based on grounds set out and supported by the Affidavit of AGOSTA MECCA an employee of the Applicant sworn on 4th November, 2025. He stated that the Applicant conducted investigations into allegations of illegal acquisition of Naivasha/Municipality LR No. 5211/2 the suit property. He went on to state that the results of the investigations revealed that the suit property was part of government land reserved and set aside for public utility being livestock quarantine and research purpose. He added that the land was therefore not available for alienation.
He stated that the subdivision and subsequent acquisition by the Plaintiff and the 1st -3rd Interested Parties was irregular. He also stated that the Applicant had substantial interest in the suit property that necessitated the filing of documents out of time. He also stated that due to the extensive preparation of the replying affidavit filed together with the complexity of the multi-party proceedings and its volume, counsel for the Applicant inadvertently overlooked its obligation to file the list of witnesses, statements and list of documents. He further stated that the omission was not deliberate and that the documents were necessary to substantiate the Applicant’s recovery mandate and also assist the court to render a just determination. He added that there would be no prejudice occasioned upon the Respondents but instead the Applicant stood to be gravely prejudiced by being denied a chance to be heard.
In conclusion, he urged the court in the interest of public justice to allow the application as prayed.
Response
The Plaintiff/Respondent filed its Replying Affidavit sworn by one Kahunyuro Macharia Kimemia, the Plaintiff’s Director where he averred that the application was incompetent and an afterthought and only meant to delay the determination of the issues in dispute. He further averred that the matter was filed on 29th July, 2021 and on 23rd March, 2022, the Applicant was enjoined as an interested party to the suit. He averred that the matter was consolidated on 28th July, 2022 but the Applicant failed to file its witness statement and bundle of documents for over 3 years despite the matter coming up for case management several times.
He averred that despite being given an opportunity to lodge and serve its claim, defense statement and witness statements and documents, the Applicants never took any steps to file them during the pre-trial stage. He added that the Plaintiff and Defendant testified and closed their cases on 16th July, 2024 and 23rd October, 2025 respectively. He averred that parties took directions and proceeded by viva voce evidence pursuant to Order 3 Rule 2, Order 7 Rule 5 and Order 11 of the Civil Procedure Rules after which they closed their cases. He further averred that the Applicant never marked any document for production and that the instant application was an attempt to patch up weakness of the Defendant’s case. He added that there was no reasonable explanation by the Applicant for failure to comply with pre-trial directions.
He also averred that the evidence that sought to be adduced by the Applicant will greatly prejudice the Plaintiff and 2nd Interested Party who already testified. He added that allowing the instant application will result in commencing trial afresh. He averred that the purported evidence were at all times within the Applicant’s reach and dated back to 1952, 2019 and 2002 and thus no reasonable explanation has been given why the same was not filed along with the Defendants suit in ELC 82 of 2019. He averred that the delay in filing the documents for over 6 years was inordinate and not a technical procedural infraction. He urged the court to dismiss the application with costs.
The 3rd Interested Party also filed his Replying Affidavit sworn on 7th November, 2025. He averred that the application was incompetent and that the Applicant failed to comply with Order 11 of the Civil Procedure Rules before the suit had been certified ready for hearing. He further averred that it would be unfair and unjust to wait until other parties had their respective cases heard and closed for the Applicant to file the instant application. He added that no explanation had been given by the Applicant to justify failure to comply with the said Order 11. He averred that they would suffer great prejudice if the application is allowed. He urged the court to dismiss the application with costs.
Submissions
I have confirmed from the record and CTS that none of the parties filed their submissions to the application.
Analysis and Determination
This court has considered the application and is of the view that the main issue for determination is whether the Applicant should be granted leave to file its witness statements and list of documents out of time.
It is trite law that the court has discretion to allow parties to file documents out of time, however, the party must give sufficient explanation as to why the said documents were never filed within the stipulated time. In addition, the application should be filed timeously and should not cause any prejudice to the opposing parties. In the case of Shah V Mbogo & Another [1967] EA 116 the Court of Appeal of East Africa held that:
“This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.”
In the Court of Appeal case of Thorn PLC V Macdonald cited by the Court in International Air Transport Association & another V Roskar Travel Limited & 3 others (Civil Case E457 of 2020) [2022] KEHC 200 (KLR) the court held as follows:
i. while the length of any delay by the defendant must be taken into account, any pre-action delay is irrelevant;
ii. any failure by the defendant to provide a good explanation for the delay is a factor to be taken into account, but is not always a reason to refuse to set aside;
iii. the primary considerations are whether there is a defence with a real prospect of success, and that justice should be done; and
iv. prejudice (or the absence of it) to the claimant also has to be taken into account.”
The Applicant reason for the delay in filing his witness statement and list of documents was that due to the complex nature of the matter as well as the multiplicity of proceedings and its volume, the counsel forgot to file the said documents. It was the Applicant’s contention that the documents were necessary in order to assist the court reach a just determination in the matter. The Plaintiff and 3rd Interested Party opposed the application on the basis that the Applicant had sufficient time to file the said documents as they were within its access. They added that reopening the matter and allowing the Applicant file the documents would greatly prejudice them as it would result in reopening the case to be heard afresh.
Notably, the record shows that on 27th November, 2023 when the matter commenced hearing, counsel for the Applicant was present but never raised any objection as to the fact that it had not filed its documents. Ironically, the matter proceeded for full hearing with the Applicant having fully participated. It is not in dispute that both the Plaintiff and Defendant’s case were heard and closed. It is also on record that before the matter took off, all parties including the Applicant had the opportunity to comply with filing of their documents.
It is not in dispute that both the Plaintiff and Defendant’s case were heard and closed and the Applicant in fact fully participated in the case. It appeared that the Applicant slept on its rights since it seemed to only discover that it had not filed its documents when the case had long begun and parties testified including the 2nd Interested Party. It is this court’s view that a delay of about 2 years has not been sufficiently explained by the Applicant and I find that the Applicant has not satisfied this court to warrant granting of leave to file its documents, especially at this stage of the case. I therefore proceed to dismiss the Applicant’s Notice of Motion dated 4th November, 2025 with costs. Orders accordingly
'
The 4th Interested Party/Applicant filed the instant application dated 4th November, 2025 seeking the following orders:
1. Leave be and is hereby granted to the 4th Interested Party/Applicant to file the list of witnesses, witness statements and list of documents out of time.
2. The list of witnesses, witness statements and list of documents annexed hereto and marked as “EACC 1” and “EACC 2” collectively be deemed as properly and validly filed for all intents and purposes of these proceedings.
3. Costs of this application be in the cause.
The Application was based on grounds set out and supported by the Affidavit of AGOSTA MECCA an employee of the Applicant sworn on 4th November, 2025. He stated that the Applicant conducted investigations into allegations of illegal acquisition of Naivasha/Municipality LR No. 5211/2 the suit property. He went on to state that the results of the investigations revealed that the suit property was part of government land reserved and set aside for public utility being livestock quarantine and research purpose. He added that the land was therefore not available for alienation.
He stated that the subdivision and subsequent acquisition by the Plaintiff and the 1st -3rd Interested Parties was irregular. He also stated that the Applicant had substantial interest in the suit property that necessitated the filing of documents out of time. He also stated that due to the extensive preparation of the replying affidavit filed together with the complexity of the multi-party proceedings and its volume, counsel for the Applicant inadvertently overlooked its obligation to file the list of witnesses, statements and list of documents. He further stated that the omission was not deliberate and that the documents were necessary to substantiate the Applicant’s recovery mandate and also assist the court to render a just determination. He added that there would be no prejudice occasioned upon the Respondents but instead the Applicant stood to be gravely prejudiced by being denied a chance to be heard.
In conclusion, he urged the court in the interest of public justice to allow the application as prayed.
Response
The Plaintiff/Respondent filed its Replying Affidavit sworn by one Kahunyuro Macharia Kimemia, the Plaintiff’s Director where he averred that the application was incompetent and an afterthought and only meant to delay the determination of the issues in dispute. He further averred that the matter was filed on 29th July, 2021 and on 23rd March, 2022, the Applicant was enjoined as an interested party to the suit. He averred that the matter was consolidated on 28th July, 2022 but the Applicant failed to file its witness statement and bundle of documents for over 3 years despite the matter coming up for case management several times.
He averred that despite being given an opportunity to lodge and serve its claim, defense statement and witness statements and documents, the Applicants never took any steps to file them during the pre-trial stage. He added that the Plaintiff and Defendant testified and closed their cases on 16th July, 2024 and 23rd October, 2025 respectively. He averred that parties took directions and proceeded by viva voce evidence pursuant to Order 3 Rule 2, Order 7 Rule 5 and Order 11 of the Civil Procedure Rules after which they closed their cases. He further averred that the Applicant never marked any document for production and that the instant application was an attempt to patch up weakness of the Defendant’s case. He added that there was no reasonable explanation by the Applicant for failure to comply with pre-trial directions.
He also averred that the evidence that sought to be adduced by the Applicant will greatly prejudice the Plaintiff and 2nd Interested Party who already testified. He added that allowing the instant application will result in commencing trial afresh. He averred that the purported evidence were at all times within the Applicant’s reach and dated back to 1952, 2019 and 2002 and thus no reasonable explanation has been given why the same was not filed along with the Defendants suit in ELC 82 of 2019. He averred that the delay in filing the documents for over 6 years was inordinate and not a technical procedural infraction. He urged the court to dismiss the application with costs.
The 3rd Interested Party also filed his Replying Affidavit sworn on 7th November, 2025. He averred that the application was incompetent and that the Applicant failed to comply with Order 11 of the Civil Procedure Rules before the suit had been certified ready for hearing. He further averred that it would be unfair and unjust to wait until other parties had their respective cases heard and closed for the Applicant to file the instant application. He added that no explanation had been given by the Applicant to justify failure to comply with the said Order 11. He averred that they would suffer great prejudice if the application is allowed. He urged the court to dismiss the application with costs.
Submissions
I have confirmed from the record and CTS that none of the parties filed their submissions to the application.
Analysis and Determination
This court has considered the application and is of the view that the main issue for determination is whether the Applicant should be granted leave to file its witness statements and list of documents out of time.
It is trite law that the court has discretion to allow parties to file documents out of time, however, the party must give sufficient explanation as to why the said documents were never filed within the stipulated time. In addition, the application should be filed timeously and should not cause any prejudice to the opposing parties. In the case of Shah V Mbogo & Another [1967] EA 116 the Court of Appeal of East Africa held that:
“This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.”
In the Court of Appeal case of Thorn PLC V Macdonald cited by the Court in International Air Transport Association & another V Roskar Travel Limited & 3 others (Civil Case E457 of 2020) [2022] KEHC 200 (KLR) the court held as follows:
i. while the length of any delay by the defendant must be taken into account, any pre-action delay is irrelevant;
ii. any failure by the defendant to provide a good explanation for the delay is a factor to be taken into account, but is not always a reason to refuse to set aside;
iii. the primary considerations are whether there is a defence with a real prospect of success, and that justice should be done; and
iv. prejudice (or the absence of it) to the claimant also has to be taken into account.”
The Applicant reason for the delay in filing his witness statement and list of documents was that due to the complex nature of the matter as well as the multiplicity of proceedings and its volume, the counsel forgot to file the said documents. It was the Applicant’s contention that the documents were necessary in order to assist the court reach a just determination in the matter. The Plaintiff and 3rd Interested Party opposed the application on the basis that the Applicant had sufficient time to file the said documents as they were within its access. They added that reopening the matter and allowing the Applicant file the documents would greatly prejudice them as it would result in reopening the case to be heard afresh.
Notably, the record shows that on 27th November, 2023 when the matter commenced hearing, counsel for the Applicant was present but never raised any objection as to the fact that it had not filed its documents. Ironically, the matter proceeded for full hearing with the Applicant having fully participated. It is not in dispute that both the Plaintiff and Defendant’s case were heard and closed. It is also on record that before the matter took off, all parties including the Applicant had the opportunity to comply with filing of their documents.
It is not in dispute that both the Plaintiff and Defendant’s case were heard and closed and the Applicant in fact fully participated in the case. It appeared that the Applicant slept on its rights since it seemed to only discover that it had not filed its documents when the case had long begun and parties testified including the 2nd Interested Party. It is this court’s view that a delay of about 2 years has not been sufficiently explained by the Applicant and I find that the Applicant has not satisfied this court to warrant granting of leave to file its documents, especially at this stage of the case. I therefore proceed to dismiss the Applicant’s Notice of Motion dated 4th November, 2025 with costs. Orders accordingly
'