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ELCAllowedNot stated in judgment (Kitale ELC suit; related: Kitale ECL Misc. Application No. 14 of 2021)· [2021] KEELC 963 (KLR)

Patrick Simiyu Khaemba v Kenya Electricty Transmission & another [2021] KEELC 963 (KLR)

Environment and Land Court
16 November 2021
FNFRED NYAGAKA
2,995 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitale (Nyagaka J) determines an oral application made on 8 November 2021 seeking the expungement from the court record of an affidavit sworn by the Respondent, Hon. Patrick Simiyu Khaemba, on 5 November 2021 and filed on 8 November 2021. The affidavit arose in a larger dispute in which the Applicant (whose law firm, Sifuna & Sifuna Advocates, sought to be enjoined as an Interested Party) had been granted leave on 27 October 2021 to file a Supplementary Affidavit and submissions; the directions permitted the Respondent to file submissions only. Counsel for the Respondent nevertheless filed a further affidavit, initially claiming the court had permitted it - a claim the record contradicted. The court framed two issues: whether the second affidavit was properly filed, and whether it should be expunged or deemed duly filed. Holding that Order 51 Rule 14 of the Civil Procedure Rules makes no provision for a Respondent to file a further affidavit after a Replying Affidavit, the court accepted that in rare and exceptional cases - where a Supplementary Affidavit raises genuinely new issues - Sections 1B and 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution justify discretionary leave, guided by Assets Recovery Agency v Charity Wangui Gethi & another [2020] eKLR. On comparison, the affidavit raised nothing new, merely restating prior assertions and the law, and being filed after the Applicant's submissions it prejudiced him. The objection was upheld, the affidavit expunged from the record, with costs in the cause.

Key legal issues

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01

Whether the second Affidavit by the Respondent was properly filed

Holding

It was not properly filed. The court on 27/10/2021 granted the Respondent leave to file submissions only, and Order 51 Rule 14 makes no provision for a Respondent to file a further affidavit after a Replying Affidavit.

Reasoning

The court record showed leave was granted only for submissions. Order 51 Rule 14(1) lists only a Replying Affidavit, Grounds of Opposition or a Notice of Preliminary Objection as response documents; a Supplementary Affidavit is an Applicant's entitlement upon leave. Though Sections 1B, 3A and Article 159(2)(d) permit exceptions in rare cases where new issues arise, the Respondent filed a further affidavit without leave and without demonstrating such new issues.

p. 2
02

Whether the Affidavit should be expunged or deemed duly filed

Holding

Expunged. It raised no new issues, merely restated prior assertions and the law, and was filed after the Applicant's submissions, thereby prejudicing him.

Reasoning

On comparison with the Supplementary Affidavit, the further affidavit responded to nothing new, only restating earlier claims and legal argument. Filed after the Applicant had filed submissions, it denied the Applicant any opportunity to respond by submissions, skewing the case. The court thus declined to exercise discretion to retain it on record and expunged it.

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Legal principles established

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  • Order 51 Rule 14 of the Civil Procedure Rules does not provide for a Respondent to file a second or further affidavit after a Replying Affidavit; only an Applicant may file a Supplementary Affidavit with leave.
  • Only in rare and exceptional cases, where a Supplementary Affidavit raises new issues not in the Supporting Affidavit, may the court exercise its discretion under Sections 1B, 3A of the Civil Procedure Act and Article 159(2)(d) to allow a Respondent to file a further affidavit.
  • The court should consider prejudice to the other party in deciding whether to admit a further affidavit; an affidavit filed after the applicant's submissions, restating prior matters, is prejudicial.

Court orders

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  1. 1.The objection is upheld and the Affidavit sworn by the Respondent on 05/11/2021 and filed in Court on 08/11/2021 is expunged from the record
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 51 Rule 14 (sub-rules 1, 3, 4)
  • Civil Procedure RulesOrder 50
  • Civil Procedure RulesOrder 52 Rule 14(1) (as referred to in the judgment)

Cases cited (1)

  • Assets Recovery Agency v Charity Wangui Gethi & another
    [2020] eKLR
Jurisdiction invoked
Sections 1B and 3A of the Civil Procedure Act; Article 159(2)(d) of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Patrick Simiyu Khaemba v Kenya Electricty Transmission & another [2021] KEELC 963 (KLR)", Case Analysis (2021). Not stated in judgment (Kitale ELC suit; related: Kitale ECL Misc. Application No. 14 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/963/eng@2021-11-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.