Patrick Mugambi Thambu & 4 others v Attorney General & 3 others [2019] KEELC 27 (KLR)
The bottom line
#A Kenyan court struck out court documents containing unfair attacks on a lawyer and reminded litigants they cannot file new documents without permission.
What this practically means
#Executive summary
#Key legal issues
#Expungement of scandalous affidavit material
The supplementary affidavit of John Thuranira Michael sworn on 7th October 2019 was scandalous, defamatory and unwarranted and was expunged from the record
The deponent alleged that the file was secretly transferred to Chuka, that counsel for the 4th respondent cheated the court and conspired to defraud the applicants, and that her conduct breached the advocates' professional code of conduct. The court found that the transfer to Chuka was proper, being the recess duty roster arrangement under the High Court (Organization and Administration) Act and rules, and that no offence or professional breach was shown. The allegations were therefore scandalous and defamatory and had no place on the record.
Filing of documents without leave
The replying affidavit filed on 2.10.2019 without leave of the court, filed after no intention to file further affidavits was indicated, was also expunged
When the matter came before the court on 18.9.2019, the applicants did not indicate any intention to file further affidavits, yet a replying affidavit sworn on 2.10.2019 and a supplementary affidavit sworn on 7.10.2019 were filed without leave. The court treated this as filing documents haphazardly without leave, justifying expungement of both affidavits.
Recess jurisdiction and transfer of urgent applications to the duty Judge
Filing under certificate of urgency during the court recess properly placed the file before the duty Judge (Justice P. M. Njoroge of Chuka ELC) under the published recess roster
Under Section 10 of the High Court (Organization and Administration) Act the court sits during defined sessions with recess intervals, and under Section 17 of the rules urgent matters are heard during recess by the Judge on duty. The Meru ELC published a roster showing Justice Njoroge of Chuka as duty Judge for 1/08/2019 to 9/08/2019, so the applicants' urgent application of 2.8.2019 properly went to Chuka. There was thus no secret transfer and no misconduct by counsel.
Legal principles established
#- Affidavits containing scandalous, defamatory and unwarranted allegations against counsel will be expunged from the record
- Parties may not file further affidavits or documents haphazardly without leave of the court; documents so filed may be expunged
Court orders
#- 1.The Replying affidavit of John Thuranira Michael sworn on 7th October 2019 is hereby expunged from the record forthwith
- 2.The other affidavit of John Thuranira filed on 2.10.2019 without leave of the court is also expunged from the record
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit parcels; incidental interlocutory application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Mugambi Thambu & 4 others v Attorney General & 3 others [2019] KEELC 27 (KLR)", Case Analysis (2019). Originating Summons filed 30.5.2019, Meru ELC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/27/eng@2019-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.