[2022] KEHC 660 (KLR)

Kamau & another v County Government of Narok (Judicial Review Application 1 of 2019) [2022] KEHC 660 (KLR) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 660 (KLR)

Republic of Kenya

In the High Court at Narok

Judicial Review Application 1 of 2019

F Gikonyo, J

June 16, 2022

Between

Joseph Kamau

1st Applicant

Douglas Kimathi

2nd Applicant

and

County Government of Narok

Respondent

Ruling

1. On 15/3/2022, Ms. Namunyak advocate for the applicants orally sought leave to file further affidavit with all documents which are relevant to the proceedings but came subsequent to the filing of the case.

2. This court then directed Ms. Namunyak to list all the documents she intends to produce, state the nature of each document and its relevance to the proceedings. Mr. Kere was to file a concise reply to the list, description and relevance.

3. Ms. Namunyak filed a list of documents dated 16th may 2022 on 16th may 2022. Mr. Kere filed his comments on the list of documents proposed to be adduced in court.

Analysis and Determination 4. I have considered the application and the list of documents filed and explanations thereto. Should the court allow or disallow all or any of the documents to be filed?

5. As a matter of fair trial, a party should bring forward all his case to the attention of the other party; not to hide his evidence or ambush the other party at the hearing. This is the essence of fair hearing in article 50 (1) of the Constitution.

6. Order 3 Rule 2, Order 7 Rule 5 and Order 11 of the Civil Procedure Rules, require parties to furnish their evidence in advance before the commencement of the trial. Except, however, with the leave of the court, documents may be filed and supplied later.

7. Nevertheless, the power to allow or not to allow a party to table more documents outside the time stipulated in law, is to be exercised in a manner that does not prejudice right to fair trial or hearing of any of the parties. This was the reasoning of the Supreme Court in the case of Raila Odinga & 5 Others vs IEBC & 3 Others, Supreme Court of Kenya, Petitions Nos. 3,4 and 5 of 2013 (2013) eKLR, where in a presidential electoral dispute, the Supreme Court declined to allow additional evidence filed outside the contemplation of the rules.

8. In all these, the drive, should be; to serve substantive justice to all parties, and not to overly or strictly serve the biddings of procedural technicalities (Article 159 (2) (d) of the Constitution). Thus, where such evidence can be adduced, without causing undue prejudice to the other party or fair trial generally, the court ought to allow the application, so as to allow such party, the opportunity to present his case in full. The court may consider various factors including, but not restricted to, the nature, effect and relevance of the documents to the proceedings or cause of action, earlier availability of the documents, whether it is a discovery of a new document, and the stage of the proceedings when the additional documentary evidence is sought to be introduced. If for example, the trial has not started, little prejudice may be caused to either party by permitting introduction of new or additional relevant evidence. No doubt however, the prejudice to the other party increases as the trial progresses. Thus, each case should be decided on its own circumstances.

9. The question that now arises is whether the documents sought to be introduced in these proceedings is relevant or related to the cause of action, or will not prejudice the trail or the respondent?

Nature of the Documents and Relevance 10. The applicants have listed the documents and has stated their relevance in the list of documents dated 16th May 2022. The respondent has also filed comments dated 25th May 2022 on the list of documents by the ex parte applicant.

11. I will consider the contention of the parties in respect of the documents listed.

John M. Mburu Alcoholic Drink Licence. 12. The applicant contends that the ‘disputed member’ holds a licence. In response the respondents have argued that the licence was issued on 19th December 2019 one month after the suit herein was filed.

Food & Hygiene Licence Kshs 5,700 Receipts. 13. The applicant’s states that Finance Bill 2019 provides for food and hygiene licence at Kshs 500 and not Kshs. 5700 charged on the applicants.

14. The respondent argued that the receipts raises issues not pleaded before court. That the impugned receipts were issued pursuant to the Food, Drugs and Chemical Substance Act (Food Hygiene) Regulations, 1978.

Certificate of Medical Examination and Test Valid For 6 Months. 15. The applicants contend that schedule 8 of the Finance Actprovides for licence at Kshs. 500 annually for medical examination as opposed to Kshs. 1,150 charged on all attendants bi annually.

16. The respondent opposed the document being produced on the ground that it raises a new issue which was not pleaded before this court. Further that the document was issued pursuant to the Food, Drugs and Chemical Substance Act.

Bar & Restaurant Licence Indicating Operating Hours. 17. The applicants stated that the alcoholic drinks control act permits bars and restaurants to operate from 2. 00 p.m. to 11. p.m. as opposed to 5. p.m. to 11. p.m.

18. The respondent contend that the court should look at the liquor licence they have produced. Further that the operating hours under the alcoholic drinks control act are contained in schedule 4 of the Alcohol Drinks Control (Licensing) Regulations, 2010. The operating hours under the Narok County Alcoholic Drinks (Regulation and Control) Act are outlined under the 1st schedule of that Act.

Liquor Clearance Fees Kshs. 3,000. 19. The applicants stated that the Narok County Finance does not provide for the said levies and the same are charged contrary to the act purportedly relied upon.

20. The respondent contend that Narok County Alcoholic Drinks (Regulations And Control) Act is silent on how much the sub county alcoholic drinks regulations committee could prescribe- the license fees to be chargeable in order to obtain an alcoholic license are set out in 12th schedule of the Narok County Finance Act, 2019. The provisions of the said Narok County Finance Act with respect to liquor licence fee are exactly similar to those of the Alcoholic Drinks Control (Licencing) Regulations. Further that the impugned document is a receipt for liquor clearance fees that was issued to NN bar/ restaurant on 24th November 2020. The fee was levied pursuant to schedule 8 of the Narok County Finance Act of 2019 and 2020 which provided for the annual levy of a health clearance fee for purposes of liquor licensing at Kshs. 3,000. Therefore, in so far as the applicants have not sought to strike out that provision of the Finance Act, this provision is not a subject matter of this court.

Application for Liquor Licencing Kshs. 1000. 21. The applicants stated that the Narok County Finance Act does not provide for the said levies and the same are charged contrary to the act purportedly relied upon.

22. The respondent contend that the applicants intend to produce a KCB bank cash deposit receipt that was issued to one Mwangi on 9th October 2020 when he deposited Kshs. 1,000 into Narok County Alcoholic Regulation Fund. The respondent argues that the same is not a levy but administrative application fee that is required when one is submitting their application to obtain a liquor licence pursuant to Section 6 and 11 of the Narok County Alcoholic Drinks (Regulation and Control) Act. That the applicants have not pleaded being aggrieved by the imposition of paying an application fee when applying for liquor licence.

Single Business Permits (Ranging From 4700 to 12,000). 23. The applicants submitted that the Narok County does not provide for a scale for business permit. That charging the said fees on already licenced business amounts to double taxation

24. The respondent contend that the issue of single business permits is not an issue before this court.

25. I have considered the arguments of the parties in relation to the documents in issue. I take the following view of the matter.

26. The documents sought to be introduced into these proceedings relate to substantive matters which are not subject of these proceedings. Some of the questions posed in the explanations by the ex parte applicant on county legislations and regulations in issue tend to a quest for invalidation of those or part of those legislations, which should be subject of a separate proceeding specifically for that purpose. In fact, matters contained in or to which the documents speak are not pleaded in these proceedings. Therefore, there is no legal basis for introduction of these documents in these proceedings.

27. In addition, the documents will wholly change the character of these proceedings which will not only bring about technical operational issues but also supplant a new cause of action without following the path of amendment. Of course, these possibilities will cause untold prejudice to the trial of the case as well the respondent’s right to fair hearing.

28. In sum, I find that the new evidence will be prejudicial to the respondent as well as the trial. The documents relate to matters not pleaded in the matter before this court.

29. The upshot is that; the application is disallowed with no order as to costs. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS 16TH DAY OF JUNE 2022F. GIKONYO MJUDGEIn the Presence of :1. Kere for respondent present2. Namnyak for ex parte applicant absent3. Kasaso C/A