[2012] KEHC 1489 (KLR)
The court found that the reason advanced by the Office of the Director of Public Prosecutions for the delay in filing the replying affidavit—namely, the late receipt of the police file—was flimsy and lacked merit. The court emphasized that Article 159 of the Constitution imposes an obligation on all parties, not...
Source-derived case information.
- Citation
- [2012] KEHC 1489 (KLR)
- Parties
- Applicant: Chris Kabiro; Respondent: The Director, Criminal Investigations Department; Respondent: The Commissioner of Police; Respondent: The Administration Police Commandant; Interested Party: Kihingo Village (Waridi Gardens) Limited; Applicant: Mathu & Gichuri Associates Limited; Applicant: Geomax Consulting Engineers Limited; Applicant: Dimensions Architects and Interior Designers Ltd; Applicant: Kanjumba Consultants Limited; Applicant: Master Power Systems Limited; Respondent: Director of Public Prosecution; Respondent: The Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 210 & 219 of 2012
- Procedural Posture
- Constitutional Petition / Ruling on Late Filing of Replying Affidavit
- Outcome
- Replying affidavit admitted out of time; petitioners and interested parties granted 14 days to respond.
- Judges
- DAS Majanja
- Legal Topics
- Conservatory Orders, Late Filing of Affidavits, Court Directions, Article 159 Constitution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chris Kabiro
Applicant
The Director, Criminal Investigations Department
Respondent
The Commissioner of Police
Respondent
The Administration Police Commandant
Respondent
Kihingo Village (Waridi Gardens) Limited
Interested Party
Mathu & Gichuri Associates Limited
Applicant
Geomax Consulting Engineers Limited
Applicant
Dimensions Architects and Interior Designers Ltd
Applicant
Kanjumba Consultants Limited
Applicant
Master Power Systems Limited
Applicant
Director of Public Prosecution
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Late Filing of Replying Affidavit
Legal Issues
- 1 Whether the court should admit the replying affidavit of the Director of Public Prosecutions filed out of time.
- 2 Whether the reasons given for the delay in filing the affidavit are sufficient to warrant the court's indulgence.
- 3 The effect of non-compliance with court directions regarding timelines for filing affidavits.
Ratio Decidendi
The court found that the reason advanced by the Office of the Director of Public Prosecutions for the delay in filing the replying affidavit—namely, the late receipt of the police file—was flimsy and lacked merit. The court emphasized that Article 159 of the Constitution imposes an obligation on all parties, not just the court, to ensure justice is dispensed without delay. Court directions regarding timelines are binding and must be complied with, as they are not mere formalities. However, in the interest of justice and to allow the matter to proceed on its merits, the court reluctantly exercised its discretion to admit the replying affidavit out of time. The court directed that the...
Court Disposition
Replying affidavit admitted out of time; petitioners and interested parties granted 14 days to respond.
Orders
- The replying affidavit of the Director of Public Prosecutions is admitted out of time.
- The petitioner and any interested party may respond to the replying affidavit within 14 days.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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CHRIS KABIRO................................................................................. PETITIONER/APPLICANT
AND
THE DIRECTOR,CRIMINAL INVESTIGATIONS DEPARTMENT ............. 1ST RESPONDENT
THE COMMISSIONER OF POLICE ……................................................... 2ND RESPONDENT
THE ADMINISTRATION POLICE COMMANDANT ….…............…........ 3RD RESPONDENT
AND
KIHINGO VILLAGE(WARIDI GARDENS) LIMITED...............................INTERESTED PARTY
CONSOLIDATED WITH 219 OF 2012
MATHU & GICHURI ASSOCIATES LIMITED.................................................. 1ST PETITIONER
GEOMAX CONSULTING ENGINEERS LIMITED .............................................2ND PETITIONER
DIMENSIONS ARCHITECTS AND INTERIOR DESIGNERS LTD..................3RD PETITIONER
KANJUMBA CONSULTANTS LIMITED .........................................................4TH PETITIONER
MASTER POWER SYSTEMS LIMITED ...........................................................5TH PETITIONER
AND
THE DIRECTOR,CRIMINAL INVESTIGATIONS DEPARTMENT...................1ST RESPONDENT
THE COMMISSIONER OF POLICE ................................................................ 2ND RESPONDENT
DIRECTOR OF PUBLIC PROSECUTION ....................................................... 3RD RESPONDENT
THE HON. ATTORNEY GENERAL ................................................................... 4TH RESPONDENT
AND
KIHINGO VILLAGE(WARIDI GARDENS) LIMITED......................................INTERESTED PARTY
RULING
1. This matter was filed in May 2012 and certified as urgent and it is on the basis of the urgency that I granted conservatory orders stopping the criminal process and giving directions for the hearing of the petition.
2. I gave directions for the filing of affidavits on 22nd May 2012, 23rd July 2012 and 17th September 2012. At all times, the officer of the Director of Public Prosecutions was present and it is on the basis of the fact that they needed time to respond that granted them indulged to file their depositions.
3. These two consolidated matters have now been fixed for hearing today, 27th October 2010. On 10th October 2012, the Office of the DPP filed the Replying Affidavit which it now seeks to be admitted out of time, thereby occasioning an adjournment of the hearing as the petitioner will be entitled to respond.
4. The reason given for the failure to file the replying affidavit out of time is that the Office of the DPP had not received the Police file until October. Counsel states that he wrote to the police on 9th July 2012. He also admits he did not follow up with a reminder.
5. The Court’s only resource is time and Article 159 of the Constitution imposes on this court the obligation to dispense justice without delay. This obligation is not on the court alone but is imposed on all institutions, persons and state organs since every person must support the Constitution. On my part I find the reason given for the delay flimsy and lacking in merit and I would ordinarily decline to accept the deposition late in time. I must also state that court directions are not bouquets of flowers to be handed out with a smile; they are court orders which counsel appearing before the court must ensure are followed and complied with.
6. I reluctantly allow the affidavit out of time and consider it duly filed. The petitioner and any of the interested parties may respond to it within 14 days.
DATEDandDELIVEREDatNAIROBIthis24th October 2012
D.S. MAJANJA
JUDGE