Jamal Abdallah Kidyogo v Msamweni Community Development Agreement Committee 1st

and deem the same as duly filed and served. The same is supported by an affidavit sworn on 28/10/2024 by the ex-parte applicant Jamal Abdallah Kidyogo. The grounds in support of this application as expounded in the supporting affidavit are that upon being granted leave on 13/8/2024 to file the substantive motion within 21 days, the ex-parte applicant delayed by about one week and filed the motion on 12/9/2024. He blamed the delay on the e-filing system. He deposes that there was a system outage which affected filing of pleadings and court processes and the substantive notice of motion was filed on 12/9/2024 as soon as the system was up. He deposes further that the delay was not inordinate and should not be visited upon the ex-parte applicant and no prejudice or damages will be occasioned upon the other parties. 5. The 1st Interested Party, Base Titanium Ltd filed a chamber summons application dated 28/11/2024, the subject of the present ruling, seeking for an order that Jamal Abdallah Kidyogo, the ex-parte applicant and the deponent of the supporting affidavit sworn on 28/10/2024 in support of the application for extension of time be produced in court for cross-examination on the contents of his affidavit. 6. The grounds in support of the application and expounded in the affidavit of Olivia Odhiambo Wameyo advocate sworn on 28/11/2024 and further affidavit sworn on 22/1/2025 are that the advocate had written inquiring from the Registrar Automation Services who confirmed that in fact there was no system outage for the e-filing system as alleged by the ex-parte applicant between the dates of 1/9/2024 and 13/9/2024 and no notice was issued by the Judiciary to that effect. Accordingly, the depositions by the ex-parte applicant are untrue and so the deponent ought to be cross-examined on their correctness. 7. The ex-parte applicant replied to the chamber summons, opposing it, by way of a replying affidavit sworn on 18/12/2024 and further affidavit sworn on 5/2/2025 by Emmanuel Kihira Mwangi advocate. He disputes the contents of the communication from the Registrar Automation and deposes that he has no faith in the same as the authenticity is questionable. He reiterates that there was a system outage and a public notice to that effect was issued. Otherwise, if he is to be subjected to cross- examination, the Registrar Automation should equally be subjected to cross-examination on the contents of her e-mail correspondence with the advocate for the 1st IP. The advocate deposes further that he has on his part written to other officers in charge of the Judiciary ICT in Mombasa and referred to Nairobi but so far, he has not received any substantive response on the issue of the system outage and notice thereon. He deposes that he finds the same prejudicial to his client. There are other depositions in the affidavits which allude to exchanges between counsels for the parties on the issue and do not help in the determination of the application. that the application should be struck out. 8. Learned counsels for the 1st IP and the ex-parte applicant filed submissions each urging their respective positions on the matter. 9. The issue raised in that application by the 1st IP is that there are glaring inconsistencies in the ex- parte applicant's affidavit in support of his application for extension of time to file the JR application with respect to why he delayed to file the application for JR after leave had been granted to do so within 21 days as from 13/8/2024. Learned counsel for the 1st IP submits that the cross-examination solely seeks leave to cross-examine the ex-parte applicant and is not the basis upon which a final adjudication on the veracity of the sworn statements would be made. 10. It is apparent that the 1st IP wishes to impeach the sworn affidavit of the ex-parte applicant for reasons that the advocate for the 1st IP wrote to the Judiciary Registrar of Automation seeking to know whether the depositions by the ex-parte applicant that there was a system downtime between 1st and 13th September that hindered him from filing his motion in time. On his part in response, learned https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19674/eng@2025-06-04 2

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counsel for the ex-parte applicant also deposes that he has sought clarification on that issue and he has not received a definitive answer from the Judiciary ICT directorate. 11. There is a pending application by the ex-parte applicant for extension of time to file the JR proceedings. There are also two pending notices of preliminary objection to the JR motion application. 12. I have given great thought to this issue and I find that if this court goes ahead to make a substantive ruling on the present application, it will inevitably touch on the pending applications and that may turn out prejudicial to the parties. 13. I note that in addition to the notice of preliminary objection, the respondent had filed its replying affidavit sworn by Rose Nsiza on 29/9/2024 to the substantive Notice of Motion. 14. I note that the ex-parte applicant had filed a further affidavit, which is a response to the preliminary objections as well as submissions dated 28/10/2024 to the substantive Notice of Motion and the two preliminary objections. 15. I am satisfied that the material presented in the present application can appropriately be applied in the arguments and disposal of those pending applications and notices of preliminary objection. 16. Consequently, it is hereby directed that the pending JR Notice of Motion, notices of preliminary objection and application for extension of time be disposed of by way of written submissions. 17. The court will give directions on how parties will comply by filing responses and submissions in the pending matters for the court's full determination. DELIVERED, DATED AND SIGNED AT KWALE ON THE VIRTUAL PLATFORM, TEAMS THIS 4TH DAY OF JUNE 2025. SIGNED BY/FOR: HON. JUSTICE ANDAYI W.F. THE JUDICIARY OF KENYA. KWALE HIGH COURT https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19674/eng@2025-06-04 3

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