Mohamud Iltarakwa Kochale, Kochale Somo Chale, Issa Jitewe Gambare, David Tomasot Arakhole, William Lengoyiap & Sekotey Seye v Lake Turkana Wind Power Ltd, Marsabit County Government, Attorney General, Chief Land Registrar & National Land Commission; Aaron Iltele Lesianntam, Henry Parasian Sakalpo, Stephen Nakeno, Job Lmalsian Lengoya & Dair Lentipan (Interested Parties) [2020] KEELC 3846 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT  AT MERU

MERU ELC CASE NO. 163  OF 2014

FORMERLY NAIROBI ELC NO. 1330 OF 2014

MOHAMUD ILTARAKWA KOCHALE.........................................1ST PLAINTIFF

KOCHALE SOMO CHALE............................................................2ND PLAINTIFF

ISSA JITEWE GAMBARE..............................................................3RD PLAINTIFF

DAVID TOMASOT ARAKHOLE...................................................4TH PLAINTIFF

WILLIAM LENGOYIAP.................................................................5TH PLAINTIFF

SEKOTEY SEYE..............................................................................6TH PLAINTIFF

VERSUS

LAKE TURKANA WIND POWER LTD.....................................1ST DEFENDANT

MARSABIT COUNTY GOVERNMENT....................................2ND DEFENDANT

THE ATTORNEY GENERAL......................................................3RD DEFENDANT

CHIEF LAND REGISTRAR.......................................................4TH DEFENDANT

THE NATIONAL LAND COMMISSION...................................5TH DEFENDANT

AARON ILTELE LESIANNTAM.................................1ST INTERESTED PARTY

HENRY PARASIAN SAKALPO….............................2ND INTERESTED PARTY

STEPHEN NAKENO…................................................3RD INTERESTED PARTY

JOB LMALSIAN LENGOYA.......................................4TH INTERESTED PARTY

DAIR LENTIPAN.........................................................5TH INTERESTED PARTY

RULING

This is a Ruling on the admissibility of the 2nd defendant’s Replying affidavit sworn on 5th April, 2019 and filed on 10th April, 2019 in response to the plaintiff’s application for contempt of court dated 25th April, 2018. The ruling on the said issue was to be delivered on 24th July, 2019 by the previous bench but it could not be delivered because the bench recused itself from the matter on 23rd July, 2019. The court has noted from the record of proceedings that on 31st July, 2018 the court directed the parties to file their responses and written submissions on the contempt of court application within 30 days. It was further directed that the said application shall be dealt with during the trial of the suit. It is apparent from the material on record that the said application was directed against the 1st defendant. It is also clear from the record that the 2nd defendant only filed its replying affidavit after about 8 months from the date directions were given on 31st July, 2018. The said affidavit was therefore filed grossly out of time. It was also filed without leave of court. The record further shows that the 2nd defendant did not seek any extension of time or tender any explanation for the inordinate delay in filing the replying affidavit. Instead, it was the 1st defendant’s advocate who raised an object to its admissibility on 22nd July, 2019 before the previous bench. The 1st defendant’s advocate consented that the said affidavit had introduced new issues after the 1st defendant had closed its case hence it would be prejudicial to allow it to stand. It is also apparent from the material on record that the 2nd defendant had also closed its case by that time. The issue of whether or not the said affidavit should be struck out or sustained was fully canvassed on 22nd July, 2019 and a ruling thereon deferred to 24th July, 2019. The ruling was not delivered due to reasons already alluded to earlier on. The court has fully considered the 1st defendant’s objection to the 2nd defendant’s said replying affidavit as well as the 2nd defendant’s submissions on the issue. The court has noted that the 2nd defendant did not render any reasonable explanation for the lengthy delay in filing the replying affidavit. The court has further noted that the said affidavit was filed after the 1st and 2nd defendants had closed their cases. As of now, all the parties have closed their respective cases. The 1st defendant shall therefore not have an opportunity to counter the contents of the 2nd defendant’s evidence as contained in the impugned replying affidavit. The court therefore agrees that the belated admission of the said affidavit shall be prejudicial to the 1st defendant and an affront to the principle of fair hearing within the meaning of Article 50 of the Constitution of Kenya 2010. The upshot of the foregoing is that the court finds merit in the 1st defendant’s objection. Accordingly, the said object is sustained and the 2nd defendants replying affidavit filed on 10th April, 2019 is hereby struck out and expunged from the record.

Delivered at Meru this 21st day of January, 2020 in the presence of:

CC Susan Lomwa

CC James Lomurut

Mario Loigwera

Kiprop for the Interested Party

A.Hashi for the Plaintiffs

J. M. Wairoto for the 1st defendant

J.W. Kungu for the 3rd and 4th defendants

J. N. Njuguna for the 5th defendants

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P.M. NJOROGE [PJ]            J.G. KEMEI, J,            Y.M. ANGIMA, J,