[2020] KEHC 2740 (KLR)
The court held that the applicant was entitled to file a further affidavit in response to the replying affidavit served on the morning of the hearing, as a matter of procedural fairness and the right to be heard. The respondent was also granted leave to file a supplementary affidavit if necessary. The interim orders...
Source-derived case information.
- Citation
- [2020] KEHC 2740 (KLR)
- Parties
- Plaintiff: Hon. Elisha Ochieng Odhiambo; Defendant: Booker Ngesa Omole
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Case E1 of 2020
- Procedural Posture
- Civil Case / Interlocutory Application for Extension of Interim Injunction and Leave to File Further Affidavit
- Outcome
- Interlocutory orders granted; leave to file further affidavit and extension of interim injunction allowed.
- Legal Topics
- Interim Injunctions, Right of Reply, Affidavit Filing, Article 33 Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hon. Elisha Ochieng Odhiambo
Plaintiff
Booker Ngesa Omole
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Extension of Interim Injunction and Leave to File Further Affidavit
Legal Issues
- 1 Whether the applicant should be granted leave to file a further affidavit in response to the replying affidavit served on the hearing date.
- 2 Whether the interim orders of injunction should be extended pending further directions.
- 3 Whether the respondent's constitutional rights under Article 33 are absolute or subject to limitation.
Ratio Decidendi
The court held that the applicant was entitled to file a further affidavit in response to the replying affidavit served on the morning of the hearing, as a matter of procedural fairness and the right to be heard. The respondent was also granted leave to file a supplementary affidavit if necessary. The interim orders of injunction previously granted were extended until the next mention date to maintain the status quo, with the court noting that the respondent's constitutional rights under Article 33 are not absolute and may be limited as provided in the Constitution. The court scheduled a mention date to confirm compliance and set a ruling date.
Court Disposition
Interlocutory orders granted; leave to file further affidavit and extension of interim injunction allowed.
Orders
- Leave granted to the applicant to file and serve a further affidavit and written submissions within 5 days.
- Respondent granted leave to file and serve a supplementary affidavit and written submissions within 5 days of service.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CIVIL CASE NO. E1 OF 2020
HON. ELISHA OCHIENG ODHIAMBO...................PLAINTIFF
VERSUS
BOOKER NGESA OMOLE.....................................DEFENDANT
RULING
1. On 25/9/2020, this court considered exparte an application for Interim orders and granted interim orders. It is ordered the application to serve the Respondent for interpartes consideration today.
2. The Applicant’s counsel was served and received the response which is bulky, this morning and seeks leave of court to file a further affidavit to respond to matters raised by the Respondent in the lengthy Replying affidavit. He also seeks for extension of the interim orders obtained.
3. Albeit counsel for the Respondent vehemently opposes the request by the applicant through his counsel, I find no merit in the opposition as the Applicant has a right of reply to a reply filed this morning by the Respondent. Equally, the Respondent reserves the right to file a Supplementary affidavit if need be upon being served with a further affidavit.
4. That being the position, I grant leave to the applicant to file a further affidavit and serve on the Respondent’s counsel within 5 days of today, together with written submissions. The Respondent is also granted leave of court to file and serve a Supplementary affidavit if need be, within 5 days of service. Which Supplementary affidavit shall be filed and served together with written submissions.
5. Mention on 13/10/2020 to confirm compliance and to give a ruling date.
6. In the meantime, the interim orders of injunction granted on 25/9/2020 against the Respondent are hereby extended and remain in force as initially granted until 13/10/2020 on account that the cited constitutional rights of the Respondent under Article 33 of the Constitution are not absolute. They are limited by the same Article 33(2) and (3) of the same constitution.
7. Orders accordingly.
Dated, signed and Delivered at Siaya this 30th Day of September 2020.
R.E. ABURILI,
JUDGE
In the presence of:
Mr. Oduol holding brief for Oruenjo for Applicants
Mr. Wachira Advocate for the Respondent
Court Assistant: Brenda