[2018] KEELC 1481 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MERU

CONSTITUTION PETITION NO. 14 OF 2017

IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 26 (1) (3), 27, (1), 28, 29 (C) (D), 17, 40 & 43 OF THE CONSTITUTION AND RULE 11 (C) AND 12 OF THE CONSTITUTION OF KENYA (PROTECTION AND FUNDAMENTAL RIGHTS AND FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013 AND ALL OTHER RELEVANT ENABLING POWER & PROVISIONS OF THE LAWS OF KENYA

AND

IN THE MATTER OF ARTICLE 25 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

BETWEEN

ISIOLO STAGE VIEW ENTERPRISES .................... PETITIONERS

AND

ISIOLO COUNTY GOVERNMENT ................... 1ST RESPONDENT

THE COUNTY COMMISSIONER ISIOLO

COUNTY ................................................................ 2ND RESPONDENT

THE ATTORNEY GENERAL ............................. 3RD RESPONDENT

RULING

1. On 10. 10. 2017, I gave directions for the petition to be heard by way of written submissions. Timelines to that effect were also given. The matter was put off to 25. 1.2018 for highlighting of submissions. Come 25. 1.2018 and there was no appearance for petitioners. Counsel for respondent informed the court that he was ready to proceed but he had an issue with an affidavit filed on 10. 1.2018 (filed after written submissions had been filed by both parties on 13/11/2017). He urged the court to strike out the said affidavit. The court proceeded to strike out the said document and also gave a date for judgment (on 7/3/2018).

2. It is these orders of 25. 1.2018 which prompted the petitioners to file the present application filed on 26. 1.2018, where they are seeking orders for the court to discharge, vary or set aside the orders and directions issued on 25th January 2018 in absence of counsel for the petitioners, that the further affidavit filed on 10. 01. 2018 be re-instated and that parties be granted a chance to high light their submissions. Further, petitioners pray that the judgment date booked for 7th March 2018 be deferred and/or postponed to a later date pending the hearing and determination of this application.

3. The grounds in support of the application are that on the fateful date of 25th January 2018, counsel for the petitioners was before Justice A. Mabeya where he was involved in High court Criminal no. 31 of 2016 Republic vs. Patrick Ithalii and another and High court criminal appeal no. 53 of 2016 Republic vs. Miriti M’Thumaita Tharamba & 3 others. When he was through with these matters, he came to the ELC court and found that this matter had been called out, the affidavit of petitioners had been expunged and a Judgment date had been given.

4. Counsel for the Petitioners avers that the further affidavit dated 10th January 2018 expunged from the record was properly on record as leave to have it filed had been sought from the court without any opposition on 27/11/2017. Petitioners aver that in the interest of justice, the orders and directions given on 25th January 2018 ought to be lifted to avoid a miscarriage of justice due to circumstances beyond the petitioners control.

5. Petitioners’ counsel has filed a supporting affidavit where he reiterates the grounds in support of the application.

6. A replying affidavit was filed by Dr. Ahmed, the Isiolo county government’s secretary who avers that 1st respondent will be prejudiced and there will be no fairness as expounded in the constitution if the application of the petitioners is allowed.

Determination

7. Firstly, I must point out that the contents of paragraph 6 of Mr. Ashaba’s supporting affidavit are not correct. The court never gave the petitioners unlimited timelines to file a further affidavit. The orders of 27. 11. 2017 were to be complied with within 14 days, which means that the further affidavit ought to have been filed by 11. 12. 2017. The document was filed on 10. 1.2019 without leave of the court and it is therefore not properly on record.

8. I find that counsels herein have taken a wrong approach to the issue of non-compliance with time lines given by the court –see proceedings of 27/11/2017 where Petitioners counsel had sought to have documents of the Respondents filed outside the given timelines expunged. The main purpose for imposing timelines of events in the lifespan of a court case (including filing of documents) is to achieve the overriding objectives set out in the Civil Procedure Act.

9. Section 1 A (1)of the civil procedure Act provides that “The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes ………”.

10. Section 1 A (3)further provides that, “A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court”.

11. The purpose of giving timelines of events is not geared towards locking out evidence. Further, it must be noted that documents filed outside the given timelines are not necessarily invalidated by non-compliance, unless there is an express order to that effect. The documents can be admitted by the court if a basis is laid for their admission

12. The court also has a constitutional mandate to ensure that cases are heard expeditiously. Article 159 (2) (b) of the constitution states that “justice shall not be delayed”.

13. Time standards help courts to closely manage and monitor the processing of cases from filing to conclusion. Further, time standards set defined targets for the completion of key process steps and events, establish overall goals that judges and lawyers must meet, create the expectation of what constitutes timeliness, and are essential to eliminating and avoiding case backlogs. The standards reflect a commitment by the courts to complete cases promptly, and also reflect what court users’ regard as a reasonable time for the resolution of case.

14. The net effect of non-compliance with the set timelines is delay, creation of backlog, more acrimony and even confusion. For one reason or another, counsels for the parties herein appear to be more concerned with the formalities without due regard to the overriding objective.

15. On the issue of the affidavit of 10. 1.2018, what was so difficult in seeking a mention date for the court to vary the orders of 27. 11. 2017 to enlarge the timelines instead of filing the document out of time knowing very well that the further affidavit filed after submissions would attract opposition.

16. Further, I note that the date of 25. 1.2018 was given in the presence of counsel for petitioners/applicants, who then ought to have been in court on 25. 1.2018 instead of coming up later with the present application containing all manner of complaints.

17. It is not lost to this court that this suit was filed contemporaneously with an interlocutory application under a certificate of urgency on 25/9/20`17. The application was abandoned so that the petition could be heard expeditiously. The court even directed that the matter be heard on priority basis vide my ruling of 3/10/17. Sadly, this was not to be and even a judgment that was scheduled on 7/3/2018 has now been derailed.

18. This court has a constitutional responsibility to ensure that Judicial Authority is exercised in a manner that embraces the aspirations of the people, taking into account that Judicial Authority is derived from the people –see article 159 of the Constitution. The kind of advocacy where the lifespan of a suit revolves so much around processes, procedures and preliminary considerations certainly erodes these aspirations.

19. A perusal of the “further affidavit” of the Petitioners reveals a rather lengthy document with several annextures. How are the respondents supposed respond to this evidence which has been availed after the filing of submissions. I am in agreement with Respondents contention that they stand to be prejudiced if this affidavit is reinstated at this stage of the trial as this would amount to trial by ambush. 50 (1) of the constitution provides that “Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body”.

20. On the other hand, this court is conscious of its mandate in administration of justice. The ultimate goal is to dispense substantive justice. In this case, I must balance the interests of the parties herein and to this end, I find it necessary to give parties an opportunity to bring forth all the evidence in support of their case.

21. It follows that the parties must go back to square one and prepare for the trial all over again to give substantive justice a chance to bloom. I therefore find it necessary to vary the orders given on 25. 1.2018 and on 27. 11. 2017 in order to ascertain that all parties are given an opportunity to be heard. This time round, the parties and their advocates must seriously embrace the Overriding Objective set out in the Civil Procedure Act.Both sides are also called upon to adhere to the provisions of section 20 of the constitution of Kenya (protection of rights and fundamental freedoms) practice and procedure rules, 2013.

22. Final orders

(i) The orders of 25. 1.2018 expunging petitioner’s document (affidavit of 10. 1.2018) and giving a date for judgment are hereby set aside.

(ii) The orders of 27. 11. 2017 giving directions on how the suit will be heard are also set aside for the court to give fresh directions.

(iii) Parties (or their advocates are to file fresh paginated bundle of the documents they desire to rely on along with affidavits and/or statements of witnesses (if any) which documents and affidavits may include all those that are already filed.

(iv)Parties to take a date for pre-trial directions in line with provisions of section 20 of the constitution of Kenya (protection of rights and fundamental freedoms) practice and procedure rules, 2013.

(v) Any subsisting orders of status quo are hereby discharged.

(vi) Petitioners are to pay costs of the present application .

DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 3rd Day of October 2018 IN THE PRESENCE OF:-

Court Assistant:Janet/Galgalo

Ashaba for petitioner

Mammu for respondent

Petitioners

HON. LUCY. N. MBUGUA

ELC JUDGE