[2022] KEHC 2566 (KLR)
The court found that while the Petitioner had provided an explanation for the delay in filing written submissions, and the Respondents no longer objected to their admission out of time, permitting the filing of a supplementary affidavit would be prejudicial and would unnecessarily delay the proceedings. The...
Source-derived case information.
- Citation
- [2022] KEHC 2566 (KLR)
- Parties
- Applicant: Fred Waluse Kimokoti; Respondent: Tom Makale; Respondent: DCIO Nanyuki; Respondent: The Inspector General of Police; Respondent: The Director of Public Prosecution; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 2 of 2020
- Procedural Posture
- Constitutional Petition / Ruling on Application to Admit Submissions and Supplementary Affidavit Out of Time
- Outcome
- Petitioner's written submissions admitted out of time; application to file supplementary affidavit refused; costs awarded to Respondents.
- Judges
- DW Mbuteti
- Legal Topics
- Extension of Time, Admission of Late Documents, Written Submissions, Supplementary Affidavit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fred Waluse Kimokoti
Applicant
Tom Makale
Respondent
DCIO Nanyuki
Respondent
The Inspector General of Police
Respondent
The Director of Public Prosecution
Respondent
The Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application to Admit Submissions and Supplementary Affidavit Out of Time
Legal Issues
- 1 Whether the court should admit the Petitioner.s written submissions filed out of time.
- 2 Whether the Petitioner should be allowed to file a supplementary affidavit at this stage of proceedings.
Ratio Decidendi
The court found that while the Petitioner had provided an explanation for the delay in filing written submissions, and the Respondents no longer objected to their admission out of time, permitting the filing of a supplementary affidavit would be prejudicial and would unnecessarily delay the proceedings. The Respondents had already filed and served their submissions, and reopening the matter at this stage was not justified. Therefore, the court exercised its discretion to admit the Petitioner.s written submissions out of time but declined to allow the filing of a supplementary affidavit. Costs of the application were awarded to the Respondents.
Court Disposition
Petitioner's written submissions admitted out of time; application to file supplementary affidavit refused; costs awarded to Respondents.
Orders
- The Petitioner.s written submissions in respect to the notice of motion dated 14/02/2020, though filed late, are admitted into the record out of time.
- The Petitioner is not permitted to file any supplementary affidavit at this stage.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NANYUKI
CONSTITUTIONAL PETITION NO 2 OF 2020
FRED WALUSE KIMOKOTI..........................................PETITIONER
VERSUS
1. TOM MAKALE
2. D C I O NANYUKI
3. THE INSPECTOR GENERAL OF POLICE
4. THE DIRECTOR OF PUBLIC PROSECUTION
5. THE ATTORNEY GENERAL.................................RESPONDENTS
R U L I N G
1. This ruling concerns the notice of motion dated 31/03/2021 filed by the Petitioner. The application seeks in essence leave of the court for admittance into the record of the court out of time the written submissions and supplementary affidavit which were in respect to the Petitioner’s application by notice of motion dated 14/02/2020. That application sought orders to restrain the Respondents “from arresting, charging, detaining or in any way interfering or harassing the Petitioner in regards to his previous engagement as an employee atUnique Loo Limitedand/or engagement with Mr Tom Makale the 1st Respondent herein” pending hearing and determination of the petition.
2. The background to the application at hand is as follows. On 28/01/2021, following representations by the learned counsels appearing, the court directed as follows –
“1. The notice of motion dated 14/02/2020 shall be disposed of by way of written submissions.
2. The Petitioner to file and serve his written submissions within seven (7) days of today.
3. The Respondents to file and serve their responses within seven (7) days of service.
4. The Petitioner may, if need be, file a rejoinder within seven (7) days of service of the Respondents’ submissions.
5. Mention on 23/02/2021 to take a date for ruling.
6. Interim orders extended to 23/02/2021.
7. Costs in the cause.”
3. Come 23/02/2021, and the Petitioner had not filed his written submissions. The explanation given was that the counsel who had conduct of the matter had been unwell. A further 14 days was requested, and granted, to file the submissions. The interim orders were also extended and the matter fixed for mention on 22/03/2021.
4. On 22/03/2021, it turned out that the Petitioner had just that morning filed his submissions, some 13 days out of time! Learned counsels objects to the admission of the Petitioner’s submissions out of time, and the court then directed that a formal application be filed. Hence the notice of motion at hand.
5. When the application came up for hearing on 09/11/2021, learned counsels for the Respondents stated that they had no objection after all to the submissions of the Petitioner being admitted out of time; they however objected to the Petitioner being allowed to file any supplementary affidavit as that would reopen up the matter since the Respondents had in the meantime long filed and served their own submissions in respect to the notice of motion dated 14/02/2020.
6. I respectfully agree with the Respondents’ learned counsels that permitting the Petitioner to put in any further pleadings at this state will simply pull back a matter that should have been determined quite a while back as the Respondents’ written submissions were long filed and served. This court will not permit that. The Petitioner’s submissions in respect to the notice of motion dated 14/02/2020, which were filed late, will however be admitted into the record out of time. It is so ordered.
7. The Respondents will have costs of the notice of motion dated 31/03/2021.
DATED AND SIGNED AT NANYUKI THIS 2ND DAY OF FEBRUARY 2022
H P G WAWERU
JUDGE
DELIVERED AT NANYUKI THIS 3RD DAY OF FEBRUARY, 2022