[2020] KEHC 3042 (KLR)
The court held that in constitutional petitions, evidence must be presented by way of affidavits, and only the court has the discretion under Rule 20 to call a witness if it deems necessary. Parties cannot unilaterally call witnesses who have not filed affidavits without prior notice to the other side, as this would...
Source-derived case information.
- Citation
- [2020] KEHC 3042 (KLR)
- Parties
- Petitioner: Abdi Mohamed Daib; Respondent: Kenya Ports Authority; Interested Party: Kenya National Examination Council; Interested Party: Kenya Institute of Studies in Criminal Justice; Interested Party: Kenya Methodist University; Interested Party: Ethics and Anti-Corruption Commission
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 30 of 2019
- Procedural Posture
- Constitutional Petition / Interlocutory Ruling on Procedure and Adjournment
- Outcome
- Adjourned for directions; procedural orders issued.
- Judges
- CA Otieno
- Legal Topics
- Fair Administrative Action, Right to Fair Hearing, Affidavit Evidence, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdi Mohamed Daib
Petitioner
Kenya Ports Authority
Respondent
Kenya National Examination Council
Interested Party
Kenya Institute of Studies in Criminal Justice
Interested Party
Kenya Methodist University
Interested Party
Ethics and Anti-Corruption Commission
Interested Party
Procedural Posture
Constitutional Petition / Interlocutory Ruling on Procedure and Adjournment
Legal Issues
- 1 Whether witnesses not having filed affidavits may be called without prior notice to the opposing party.
- 2 Whether a case conference and directions under Rule 20 are necessary in constitutional petitions to ensure fair process.
Ratio Decidendi
The court held that in constitutional petitions, evidence must be presented by way of affidavits, and only the court has the discretion under Rule 20 to call a witness if it deems necessary. Parties cannot unilaterally call witnesses who have not filed affidavits without prior notice to the other side, as this would amount to ambush and violate the principles of fair hearing. The court further emphasized the desirability of holding a case conference to give directions on the conduct of the petition, which had not been done in this case. Consequently, the matter was adjourned to allow parties wishing to call witnesses who have not filed affidavits to do so and serve the other side, with...
Court Disposition
Adjourned for directions; procedural orders issued.
Orders
- The matter is adjourned and stood over to 11/11/2020 for directions by the trial court in terms of Rule 20.
- Any counsel wishing to call a witness who has not filed an affidavit must file and serve such affidavit before the next hearing date.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL PETITION NO. 30 OF 2019
IN THE MATTER OF: THE CONSTITUTION OF THE REPUBLIC OF KENYA
AND
IN THE MATTER OF: THE EMPLOYMENT ACT, 2007
AND
IN THE MATTER OF: FAIR ADMINISTRATIVE ACTION ACT
AND
IN THE MATTER OF: THE PETITIONERS’ ACADEMIC PAPERS ISSUED
BY THE KENYA NATIONAL EXAMINATION COUNCIL; KENYA METHODIST
UNIVERSITYAND KENYA INSTITUTE OF STUDIES IN CRIMINAL JUSTICE
AND
IN THE MATTER OF: ALLEGED VIOLATION AND INFRINGEMENT OF THE RIGHTS
AND FREEDOMS IN ARTICLES 2(4), 3, 10, 19(1) & (2), 20(1) & (2), 21, 22, 23, 27, 28, 29(f),
25, 47, 48, & 50(1) & (2), 159, 258(1) & 259(1) OF THE CONSTITUTION OF KENYA
-BETWEEN-
ABDI MOHAMED DAIB......................................................................................................PETITIONER
-VERSUS-
KENYA PORTS AUTHORITY..........................................................................................RESPONDENT
KENYA NATIONAL EXAMINATION COUNCIL.....................................1ST INTERESTED PARTY
KENYA INSTITUTE OF STUDIES IN CRIMINAL JUSTICE.................2ND INTERESTED PARTY
KENYA METHODIST UNIVERSITY..........................................................3RD INTERESTED PARTY
ETHICS AND ANTI-CORRUPTION COMMISSION...............................4TH INTERESTED PARTY
R U L I N G
1. Granted that this litigation is by way of a constitutional petition, it should never be deemed to negate on the norms of what would pass as fair court process.
2. By rules, the evidence to be used in a petition is availed by Affidavits and Rule 20 only gives room to court to call a witness it forms the opinion could assist it. That leeway is to the court not to the parties to call at any time any witness from anywhere and without the courtesy to swear an Affidavit and serve the other parties.
3. On that basis, I do consider the position and complaint by Mr. Omondi to be a valid one that to avoid ambush, what Mr. Oscah Otieno is intended to tell the court need be availed to the opposing side in advance.
4. I also consider it a desirable practice that even in constitutional petitions a case conference needs to be undertaken so that directions anticipated under Rule 20(i) may be given on how to handle the petition. It appears that was not done here hence by the time the file landed on my desk it was not obvious how the matter would proceed.
5. On those two grounds and the additional fact that I am due to proceed on transfer not later than the 01/11/2020, I do adjourn the matter and stand it over to the 11/11/2020 for directions by the trial court in terms of Rule 20.
6. Between now and then, let every counsel who would wish to call a witness who has not filed any affidavit file Affidavits by such a witness and serve the other side.
7. Costs in the cause.
Dated, signed and deliveredat Mombasa
this 22ndday of September 2020
P.J.O. OTIENO
JUDGE