Muthithi Investments Limited v Gideon Mbuvi Sonko [2021] KEELC 4481 (KLR)
The bottom line
#Kenya's High Court gave Mike Sonko one last 14-day chance to respond to a constitutional petition, but refused to let a third party answer for him.
What this practically means
#Executive summary
#Key legal issues
#Whether the application required a supporting affidavit
A supporting affidavit is not a mandatory requirement; rule 19 uses permissive language ('may be supported')
The court examined the literal wording of rule 19 of the Constitution of Kenya (Protection of Rights & Fundamental Freedoms) Practice and Procedure Rules 2013 and held that the phrase 'may be supported by an affidavit' is permissive, not mandatory. The petitioner's objection that the motion was unsupported by an affidavit therefore failed.
Whether to extend time for filing a response
Time extended, reluctantly, solely because the application was made before the petition was heard and determined
Although the applicant had ignored at least four earlier indulgences granted between September 2019 and January 2020, and conduct intended to frustrate the petition disqualified him from the discretion, the court invoked the principle against shutting a litigant out of the seat of justice before final determination and granted a final 14-day window, cushioned by throw-away costs and a default clause.
Whether the S G Mwangi affidavit could be filed as the response
Refused; the deponent and the County Government are strangers to the petition
The court held that the affidavit could not be received as the response because S G Mwangi is not a party, the County Government of Nairobi is not a party, the applicant is no longer Governor, and the petition's allegations are directed personally at the applicant. The choice of deponent rests with the respondent, subject to compliance with the rules.
Legal principles established
#- Rule 19 of the Mutunga Rules does not make a supporting affidavit mandatory for a formal application under the Rules
- Courts should be hesitant to shut a litigant out of the seat of justice when leave to file pleadings is sought before a suit is conclusively heard and determined
- A party who deliberately disobeys court orders and obstructs justice does not deserve the court's discretion to extend time
Court orders
#- 1.The respondent in the petition is granted 14 days within which to file and serve a response to the petition
- 2.The respondent in the petition shall pay the petitioner's advocates throw away costs of Kshs 30,000 within 14 days
- 3.In default of filing the response or paying the costs, the leave granted shall stand vacated, any response filed shall stand struck out and the petition shall proceed as an undefended cause
- 4.The petitioner shall have 14 days from service of the response to file a supplementary affidavit and supplementary written submissions
- 5.The respondent shall have 14 days thereafter to file and serve written submissions
- 6.The matter to be set down for highlighting of written submissions at the reading of the ruling
- Jurisdiction invoked
- Constitution of Kenya 2010 petition; discretion to extend time under the Constitution of Kenya (Protection of Rights & Fundamental Freedoms) Practice and Procedure Rules 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthithi Investments Limited v Gideon Mbuvi Sonko [2021] KEELC 4481 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4481/eng@2021-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.