[2012] KEHC 387 (KLR)
The court determined that it would be prejudicial to the petitioner to proceed with the decision on the petition while the application for extension of time to file the replying affidavit and the affidavit itself remain unaddressed. The court is bound to consider the replying affidavit since it is on record, but...
Source-derived case information.
- Citation
- [2012] KEHC 387 (KLR)
- Parties
- Applicant: Mathatani Limited; Respondent: The Commissioner of Lands; Respondent: The Attorney General; Respondent: The Chief Engineer Ministry of Road; Respondent: Kenya National Highway Authority; Respondent: Nicholas O'Dweyer & Co. Ltd of Ireland; Respondent: Abdul Mullick Associates Ltd (K)
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 262 of 2011
- Procedural Posture
- Civil Case / Interlocutory; Pending Determination of Application for Extension of Time to File Replying Affidavit
- Outcome
- Decision deferred; matter stood over pending determination of application for extension of time and/or response to replying affidavit.
- Judges
- GMA Dulu
- Legal Topics
- Extension of Time, Replying Affidavit, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mathatani Limited
Applicant
The Commissioner of Lands
Respondent
The Attorney General
Respondent
The Chief Engineer Ministry of Road
Respondent
Kenya National Highway Authority
Respondent
Nicholas O'Dweyer & Co. Ltd of Ireland
Respondent
Abdul Mullick Associates Ltd (K)
Respondent
Procedural Posture
Civil Case / Interlocutory; Pending Determination of Application for Extension of Time to File Replying Affidavit
Legal Issues
- 1 Whether the court should grant leave to the respondents to file and serve a replying affidavit out of time.
- 2 Whether considering the replying affidavit without the petitioner's response would be prejudicial.
Ratio Decidendi
The court determined that it would be prejudicial to the petitioner to proceed with the decision on the petition while the application for extension of time to file the replying affidavit and the affidavit itself remain unaddressed. The court is bound to consider the replying affidavit since it is on record, but fairness requires that the petitioner be given an opportunity to respond before the court can rely on it. Therefore, the crafting of the decision is deferred until the application for extension of time and/or the replying affidavit is addressed.
Court Disposition
Decision deferred; matter stood over pending determination of application for extension of time and/or response to replying affidavit.
Orders
- Crafting of the decision is put off until the application for extension of time and/or the replying affidavit is addressed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
High Court at Machakos
Civil Case 262 of 2011 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif][if gte mso 9]><xml>
Normal 0
false false false
EN-ZA X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif";} </style> <![endif]
MATHATANI LIMITED …………………………..………………..PETITIONER
VERSUS
THE COMMISSIONER OF LANDS………………………1ST RESPONDENT
THE ATTORNEY GENERAL……………………..….....…2ND RESPONDENT
THE CHIEF ENGINEER MINISTRY OF ROAD…......……3RD RESPONDENT
KENYA NATIONAL HIGHWAY AUTHORITY……....……4TH RESPONDENT
NICHOLAS O’DWEYER &CO. LTD OF IRELAND….....5TH RESPONDENT
ABDUL MULLICK ASSOCIATES LTD (K)………..…….6TH RESPONDENT
COURT
As I sat down to craft the decision herein, it transpired that the 1st and 2nd respondent had filed a replying affidavit on 23rd October, 2012. Contemporaneously with the filing of the replying affidavit, the 2 respondents took out a Notice of Motion seeking leave of this court to file and serve out of time the replying affidavit. The application has since been served on the petitioner. The replying affidavit raises issues that may impact heavily and have a direct bearing on determination of the petition if the depositions therein are indeed true. They tend to portray petitioner as being less than candid with the court. Those issues cannot simply be wished away.Since the affidavit is on record this court is bound to look at it. However, it will be prejudicial to the petitioner if I embarked on the exercise without the benefit of its response. In the premises, I am constrained to put off the crafting of the decision until the application for extension of time and or the replying the affidavit is addressed one way or another.
DATEDat MACHAKOSthis 22NDday ofNOVEMBER, 2012.
ASIKE-MAKHANDIA
JUDGE
DATED, SIGNEDand DELIVERED at MACHAKOSthis 30THday of NOVEMBER, 2012.
GEORGE DULU
JUDGE