Kimako & 7 others v Machakos County Government & 4 others

RULING 1. The application is dated 27th May 2025 and is brought under Sections 1A, 1B, and 3A of the Civil Procedure Act, Order 2 Rule 15, Order 7 Rule 5, Order 51 Rule 1 of the Civil Procedure Rules seeking the following orders; 1. The Replying Adavit and the documents annexed thereto led by the 2nd Respondent dated 5th April, 2021 be struck out for being led out of time without the leave of the court. 2. The said documents are prejudicial to the Petitioners as 10 of their witnesses have already testied, and allowing them would amount to trial by ambush and unfair litigation tactics. 3. The 2nd Respondent has not sought nor obtained leave of this Honourable Court to le the said documents, rendering them irregular, an abuse of the court process, and a violation of fair trial principles. 2. It is based on the following grounds that the court had previously issued directions on the timelines for ling pleadings and documents, which the 2nd Respondent has blatantly disregarded. That the Petitioners have already presented 10 witnesses who have testied based on the pleadings and documents on record, and the ling of new documents at this stage is highly prejudicial. That no explanation has been given by the 2nd Respondent for the inordinate delay in ling the Replying Adavit and accompanying documents. That the failure to seek leave of the Court before ling the said documents renders them irregular, incompetent, and an abuse of the court process. That allowing the impugned documents would violate the Petitioners’ right to a fair trial as enshrined under Article 50 of the Constitution of Kenya. That this Honouralbe Court has inherent powers to ensure fair administration of justice by striking out documents led in violation of procedural rules. 3. This court has considered the application and the submissions therein. The Applicant stated that the Replying Adavit and the documents annexed thereto led by the 2nd Respondent dated 5th April, 2021 be struck out for being led out of time without the leave of the court. That the said documents are prejudicial to the Petitioners as 10 of their witnesses have already testied, and allowing them would amount to trial by ambush and unfair litigation tactics. 4. Be that as it may, Section 1A of the Civil Procedure Act provides for the overriding objective of the Civil Procedure Act and the Rules made thereunder and provides as follows: 1A 5. (1) The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and aordable resolution of the civil disputes governed by the Act. (2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give eect to the overriding objective specied in subsection (1). (3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that eect, to participate in the processes of the Court and to comply with the directions and orders of the Court. Section 1B of the same Act, on the other hand provides for the duty of court and states: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18418/eng@2025-12-18 2

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(1) 6. For the purpose of furthering the overriding objective specied in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims — (a) the just determination of the proceedings; (b) the ecient disposal of the business of the Court; (c) the ecient use of the available judicial and administrative resources; (d) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost aordable by the respective parties; and (e) the use of suitable technology. The 2nd Respondent admits that their response was led out of time on the 5th April 2021 and without the leave of the court. That this was due to extraneous circumstances like including the Advocates study leave and delay by the court registry in mapping the 2nd Respondent as a party to this suit. That the same was led using the court’s email address. I have perused the court le and if the record is correct I nd that the matter rst came up for hearing on the 7th November 2022 when PW1 testied, long after the 2nd Respondent had led their documents. I nd the delay may have also been occasioned by the court and it is in the interest of justice that all parties be given a fair hearing to enable this court reach a just decision. The parties be at liberty to recall the witnesses if need be. I therefore order that the said reply adavit and documents be deemed as duly led. In the circumstances I nd that the application is not merited and I dismiss the same. Costs to be in the cause. It is so ordered. DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 18TH DAY OF DECEMBER, 2025. ......................................... N. A. MATHEKA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18418/eng@2025-12-18 3

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