[2006] KEHC 1920 (KLR)
The court held that while it has jurisdiction under Order 53 Rule 4(2) of the Civil Procedure Rules to grant leave for the filing of further affidavits in judicial review proceedings, such leave can only be granted if the party seeking it demonstrates that the further affidavit will deal with new matter arising out...
Source-derived case information.
- Citation
- [2006] KEHC 1920 (KLR)
- Parties
- Applicant: Diocese of Kakamega Trustees; Respondent: The Diocese of Kakamega Trustees Ikolomani Division; Interested Party: United Company Ltd.
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 169 of 2000
- Procedural Posture
- Miscellaneous Application / Ruling on Oral Application for Leave to File Further Affidavit in Judicial Review Proceedings
- Outcome
- application dismissed with costs to the applicant
- Legal Topics
- Judicial Review Procedure, Further Affidavits, Order 53 Rules, Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Diocese of Kakamega Trustees
Applicant
The Diocese of Kakamega Trustees Ikolomani Division
Respondent
United Company Ltd.
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Oral Application for Leave to File Further Affidavit in Judicial Review Proceedings
Legal Issues
- 1 Does the court have jurisdiction to grant leave for filing a further affidavit in judicial review proceedings under Order 53 Rule 4(2)?
- 2 Has the interested party demonstrated sufficient grounds for leave to file a further affidavit?
Ratio Decidendi
The court held that while it has jurisdiction under Order 53 Rule 4(2) of the Civil Procedure Rules to grant leave for the filing of further affidavits in judicial review proceedings, such leave can only be granted if the party seeking it demonstrates that the further affidavit will deal with new matter arising out of the affidavits of any other party. In this case, the interested party failed to demonstrate what the new matter was or that it arose from the affidavits of the other parties. Consequently, the application for leave to file a further affidavit could not succeed. The court also clarified that notice of intention to file such an affidavit is only required from the applicant,...
Court Disposition
application dismissed with costs to the applicant
Orders
- The application for leave to file a further affidavit is dismissed.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA
Civil Misc Appli 169 of 2000
BETWEEN
DIOCESE OF KAKAMEGA TRUSTEES ..........................................................................APPLICANT
VERSUS
THE DIOCESE OF KAKAMEGA TRUSTEES IKOLOMANI DIVISION ..................... RESPONDENT
A N D
UNITED COMPANY LTD. .......................................................................................INTERESTED PARTY
R U L I N G
The application for judicial review made in the Notice of Motion dated 21-11-00 was on 11-4-05 fixed for hearing on 14-11-05 when it came up before me.
Mr. Mukavale, learned counsel for the interested party, sought leave orally to file a further affidavit on behalf of his said client. His application was premised on the ground that his client wished to bring to the attention of the court a Ruling in Kakamega H.C.C.C. No. 198 of 1999 so as to help the court, he said, to arrive at a just decision.
The application was opposed by Mr. Fwaya, learned counsel for the Applicant who contended that a similar application had been made (on 25-9-01) and rejected (on 22-10-01). It was his contention that the interested party had not demonstrated that there were new issues or given notice to that effect. It was Mr. Fwaya’s submission that the court had no jurisdiction to grant leave to file the intended further affidavit. In his view, the interested party was out to delay the litigation. In this regard, he pointed out that the judicial review application was filed 5 years ago on 23-11-00 yet the interested party had not made up his mind to prosecute the matter. Mr. Fwaya urged the court to reject the application.
Does the court have jurisdiction to grant the leave sought? And if so has the interested party made out a case for the grant of the leave to file a further affidavit? The answer is to be found in Order 53 Rule 4(2).
Rule 4(2) of Order 53 stipulates:-
“The High Court may on the hearing of the motion allowthe said statement to be amended, and may allow furtheraffidavits to be used if they deal with new matter arisingout of the affidavits of any other party to the application,and where the applicant intends to ask to be allowed toamend his statement or use further affidavits, he shallgive notice of his intention and of any proposed amendmentof his statement, and shall supply on demand copies ofany such further affidavits.”
It is discernible from this rule that the court has jurisdiction to grant leave for the filing of further affidavits if the party applying for such leave shows (1) that such further affidavits will deal with new matter and (2) that the new matter arises out of the affidavits of any of the other party to the application.
The interested party did not demonstrate to the court what the new matter was, much less that it arose out of the affidavits of any of the other parties. On this score alone, the application must fail.
It was not however necessary for the interested party to give notice of his intention to apply for leave to file such further affidavit because such notice is only required of the Applicant. It is not required of any other party to the application.
In the result, the application fails and is hereby dismissed with costs to the Applicant.
Dated, signed and delivered at Kakamega this 5th day of May, 2006.
G. B. M. KARIUKI
J U D G E