Ibrahim Ndadema Adenya v The Honourabe Attorney General C/o Ministry of Foreign Affairs and International Trade

that he later cameupon the authority, and as an officer of the Court, he wouldbe failing in his duty if he did not draw to the attention of theCourt such an authority. 3. It was also his submission that the respondent andinterested party have been given a chance to answer andrespond to the authority, and by failing to respond to it, theywere prejudicing themselves. 4. Ms. Kamande, on behalf of the respondent, opposed anyreliance being placed on the contents of the letter and the2Ruling: Petition No. 204 of 2015 authority filed by Counsel for the petitioner. Her submissionwas that it seemed that the petitioner was making furthersubmissions after the case had closed, which would force theparties to re-open the issues in the petition. In her view,Counsel for the petitioner had had a chance to make hissubmissions but had not. In any event, authorities are notbinding on the Court but are merely persuasive, and sheurged the Court to disregard the authority. 5. On behalf of the interested party, Mr. Ochieng associatedhimself with the submissions made by Ms. Kamande. Hissubmission was further that this is a Court of law governedby the Constitution and with a procedure provided underThe Constitution of Kenya (Protection of Rights andFundamental Freedoms) Practice and ProcedureRules, 2013 (Mutunga Rules). Accordingly, parties whowish to file pleadings ought to obey the procedure, and thereis no known procedure under which a party can reopen acase in which judgment had already been reserved. 6. Mr. Ochieng also took the view that if the procedure adoptedby the petitioner was allowed, cases will never end. Eachparty had been given a chance to present its case and if aparty is not satisfied with the decision to be rendered, he canalways file an appeal. Counsel therefore urged the Court to disregard the letter and the authority, noting that it was inthe interests of the petitioner to have this case concluded. 7. In asking the parties to comment on the submissions and theletter presented to the Court by Counsel for the petitioner,the Court was impelled by a desire not to dismiss offhandthe said letter, but also the need to give the opposing partiesa chance to be heard on the propriety or otherwise ofconsidering the belated effort by Counsel for the petitionerto present additional material before the Court. 8. I have considered the views of the parties with respect to thepetitioner’s letter. Rule 22 of the Mutunga Rules providesthat: (1) Each party may file written submissions. (2) Subject to such directions as may beissued by the court, written submissionsshall contain the following (3) (a) a brief statement of facts with referenceto exhibits, if any, attached to thepetition; (b) issues arising for determination; and (c) a concise statement of argument oneach issue incorporating the relevantauthorities referred to together with thefull citation of each authority. Copies of the authorities to be relied on shall be attached to the writtensubmissions. (Emphasis added) 9. There is thus a clearly defined procedure in the Rules for thefilling of submissions and authorities which parties arerequired to comply with. The record of proceedings in thismatter will show that the petitioner had ample opportunity topresent all his submissions and authorities before the Court,but did not do so. 10. Article 159 of the Constitution, which vests judicial authorityin the Courts, provides at sub-article (2) (d) that Justiceshall be administered without undue regard toprocedural technicalities..” The operative https://new.kenyalaw.org/akn/ke/judgment/kehc/2016/7660/eng@2016-05-11 2

page 2 of 3

words in thisprovision are ‘undue regard”. While it is important to allowparties to present their entire case before the Court, it wouldgreatly compromise the dispensation of justice if a party,who has had ample opportunity to present his case, wakesup days or weeks after conclusion of the case and presentsadditional material for consideration by the Court. 11. Such a practice would lead to unnecessarily prolonging thecase, and litigation would never come to an end. Thus, whilethere is a need not to be bound by procedural technicalities,this must, in my view, apply where the matter has not beenheard to its conclusion. Even then, as the Supreme Courtopined in the case of Raila Odinga vs IndependentElectoral and Boundaries Commission and Others, Petition No. 5 of 2013, Article 159 (2) (d) of theConstitution simply means that a court of Law should notpay undue attention to procedural requirements at theexpense of substantive justice, and was never meant to oustthe obligation of litigants to comply with proceduralrequirements as they seek justice from the court. 12. Consequently, while I appreciate the effort made by thepetitioner’s Counsel in obtaining and submitting theauthority in question, I must observe that such efforts servea party best prior to the conclusion of the case. 13. In any event, I will not consider the submissions andauthority in determining the substantive petition, which Inow turn to consider. DATED, DELIVERED AND SIGNED AT NAIROBI THIS 11TH DAY OF MAY 2016. MUMBI NGUGI JUDGE Mr. Muturi instructed by the firm of Nelson Harun Muturi & Co. Advocates for the petitioner. Ms. Kamande instructed by the State Law Office for the respondent. Mr. Ochieng Owiti instructed by the firm of Sisule Munyi Kilonzo & Co. Associates Advocates for the interested party. https://new.kenyalaw.org/akn/ke/judgment/kehc/2016/7660/eng@2016-05-11 3

page 3 of 3