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ELCDismissedNot stated in the excerpt provided· [2021] KEELC 995 (KLR)

Republic v Deputy County Commissioner Masinga Sub County & 2 others; Ex Parte Applicant Samuel Mwangangi Mulwa; Paul Mwau Mwonga & another (Interested Parties) [2021] KEELC 995 (KLR)

High Court of Kenya
8 November 2021
COCHRISTINE OCHIENG
1,418 words in judgment
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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 judgment by the High Court at Machakos (Christine Ochieng, J) determines a Notice of Motion dated 18th February 2021 by the 1st Interested Party in a judicial review matter, seeking expungement of four further affidavits sworn by Simon Munywoki Kiminza, Nicholas Kiswili Mawia, Kativa Musyoka and Stephen Voi Makau on the grounds that they were filed without leave and out of time, and allegedly introduced new facts and included possible forgeries. The Ex parte Applicant opposed, relying on Order 53 Rule 4 of the Civil Procedure Rules and contending the affidavits were properly on record. The court framed a single issue: whether the further affidavits should be expunged. Relying on Order 53 Rule 4(2), which permits further affidavits dealing with new matter, and on authorities including Equity Bank Ltd v West Link MBO Ltd, Branco Arabe Espanol v Bank of Uganda, and Republic v Attorney General ex parte South and Central [Thika] Investments Ltd, the court held that irregularly filed documents should not be ignored absent material prejudice to the other side. No prejudice was demonstrated by the 1st Interested Party, and Article 159(2)(d) requires justice to be administered without undue regard to procedural technicalities. The court exercised its discretion to adopt the further affidavits as part of the record, granted the 1st Interested Party 21 days to file a supplementary affidavit in response, dismissed the application as unmerited, and ordered costs to be in the cause. Judgment was delivered virtually at Machakos on 8th November 2021.

Key legal issues

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01

Whether further affidavits filed after the period of leave had lapsed should be expunged from the record

Holding

The affidavits should not be expunged; the court exercised its inherent powers and discretion to adopt them as part of the record and granted the Interested Party leave to respond

Reasoning

Order 53 Rule 4(2) allows further affidavits dealing with new matter. The court found the affidavits concern the dispute at hand, that no prejudice was demonstrated by the 1st Interested Party, and that the matters raised are pertinent to the just determination of the dispute. Guided by Article 159(2)(d), the court declined to expunge them for late filing without leave, granting instead a right of reply.

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02

Whether reliance on absence of leave to file further affidavits constitutes a procedural technicality

Holding

Yes; expunging the affidavits for want of leave would amount to undue regard to procedural technicalities under Article 159(2)(d)

Reasoning

The court held that in the current constitutional dispensation, Article 159(2)(d) requires that justice be administered without undue regard to procedural technicalities, and that the application to expunge was founded on such a technicality. The court also invoked its inherent powers to receive all evidence in a dispute before making a determination.

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Legal principles established

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  • The Court ought not to ignore documents on record even if irregularly filed unless the filing has prejudiced the other party in material respect
  • Justice shall be administered without undue regard to procedural technicalities under Article 159(2)(d)

Court orders

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  1. 1.The further affidavits filed late by the Ex parte Applicant are adopted as part of the court record
  2. 2.The 1st Interested Party is granted leave of 21 days to file a supplementary affidavit in response to the issues raised in the further affidavits
  3. 3.The Notice of Motion application dated 18th February 2021 is disallowed
  4. 4.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 4(2)
  • Civil Procedure RulesOrder 53 Rule 4(1)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (10)

  • Astute Africa Investment & Holding V Spire Bank Kenya Limited & Another (2015) eKLR
  • Nyumu & 3 Others V Muema & 21 Others (2004) eKLR
  • Kiiru Tea Factory Company Ltd V Stephen Maina Githiga & 13 Others (2019) eKLR
  • Commissioner Lands & Kunste Ltd (1977) eKLR
  • M.M Ole Keiuwa & Another V Yash Pal Ghai (2002) eKLR
  • Republic V Kahindi Nyafula & Others ex parte Kilifi South East Farmers’ Cooperative (2014) eKLR
  • Equity Bank Limited v West Link MBO Ltd Civil Application (Appeal) no 78 of 2011
  • Branco Arabe Espanol vs. Bank of Uganda [1999] 2 EA 22
    [1999] 2 EA 22
  • Republic v Speaker of Nairobi City County Assembly & another Exparte Evans Kidero [2017] eKLR
    [2017] eKLR
  • Republic v Attorney General [Sued for and on behalf of the Ministry of Lands] & 2 others ex parte South and Central [Thika] Investments Limited [2015] eKLR
    [2015] eKLR
Jurisdiction invoked
Order 53 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution (judicial review proceedings before the High Court)

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, "Republic v Deputy County Commissioner Masinga Sub County & 2 others; Ex Parte Applicant Samuel Mwangangi Mulwa; Paul Mwau Mwonga & another (Interested Parties) [2021] KEELC 995 (KLR)", Case Analysis (2021). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/995/eng@2021-11-08

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