[2009] KEHC 4244 (KLR)

[2009] KEHC 4244 (KLR)

The court held that although judicial review proceedings are not strictly subject to the Civil Procedure Rules, the respondent's conduct in filing the replying affidavit late was improper and bordered on contempt for the court's process. However, the court exercised its discretion to allow the late filing, noting that the affidavit was only one day late beyond the extension previously granted. The overriding consideration was that justice requires both parties to be heard, and expunging the affidavit would defeat the purpose of a fair and equitable hearing. The court therefore deemed the replying affidavit properly filed out of time and granted the applicant 14 days to respond.

Citation
[2009] KEHC 4244 (KLR)
Parties
Applicant: Republic; Respondent: Kwale District Physical Planning Liaison Committee; Applicant: Galerius Investment Limited
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Judgment Date
23 October 2009
Case Number
Civil Miscellaneous Application 416 of 2006
Procedural Posture
Miscellaneous Application / Ruling on Objection to Late Filing of Replying Affidavit
Outcome
Objection to late filing of replying affidavit dismissed; replying affidavit deemed properly filed out of time.
Legal Topics
Judicial Review Procedure, Late Filing of Affidavits, Right to Be Heard
Source Language
English
Civil Procedure Administrative Law Judicial Review Procedure Late Filing of Affidavits Right to Be Heard

Case Brief

Summary, issues, holding and outcome

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Parties

Republic

Applicant

Kwale District Physical Planning Liaison Committee

Respondent

Galerius Investment Limited

Applicant

Procedural Posture

Miscellaneous Application / Ruling on Objection to Late Filing of Replying Affidavit

Legal Issues

  1. 1 Whether the respondent's replying affidavit filed out of time should be expunged from the record.
  2. 2 Whether the Civil Procedure Rules apply to judicial review proceedings regarding the filing of affidavits.
  3. 3 Whether allowing the late affidavit would prejudice the applicant or undermine the court's process.

Ratio Decidendi

The court held that although judicial review proceedings are not strictly subject to the Civil Procedure Rules, the respondent's conduct in filing the replying affidavit late was improper and bordered on contempt for the court's process. However, the court exercised its discretion to allow the late filing, noting that the affidavit was only one day late beyond the extension previously granted. The overriding consideration was that justice requires both parties to be heard, and expunging the affidavit would defeat the purpose of a fair and equitable hearing. The court therefore deemed the replying affidavit properly filed out of time and granted the applicant 14 days to respond.

Court Disposition

Objection to late filing of replying affidavit dismissed; replying affidavit deemed properly filed out of time.

Orders

  • The replying affidavit dated 15th October 2009 is deemed properly filed out of time.
  • The applicant is granted 14 days to respond to the replying affidavit.