[2012] KEHC 3286 (KLR)
The court held that since the petitioners themselves had not complied with the timelines for filing submissions, it would be unjust to bar the respondents from filing their replying affidavits on grounds of delay. The court emphasized the importance of all parties being given an equal opportunity to present their...
Source-derived case information.
- Citation
- [2012] KEHC 3286 (KLR)
- Parties
- Applicant: Mbeere Elders Advisory Welfare Group; Applicant: David Miti Njuki; Applicant: Njeru Banda; Applicant: Eston Nyaga Nthiga; Applicant: Seraphino Ngari; Respondent: Attorney General; Respondent: Commissioner of Lands; Respondent: Director of Land Adjudication; Respondent: Chief Land Registrar; Respondent: District Land Registrar Mbeere District (South); Respondent: County Council of Mbeere
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Petition 7 of 2011
- Procedural Posture
- Constitutional Petition / Interlocutory Application—leave to File Replying Affidavit and Submissions
- Outcome
- Objection dismissed; leave granted to respondents to file replying affidavits.
- Legal Topics
- Community Land Rights, Trust Land, Procedural Fairness, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mbeere Elders Advisory Welfare Group
Applicant
David Miti Njuki
Applicant
Njeru Banda
Applicant
Eston Nyaga Nthiga
Applicant
Seraphino Ngari
Applicant
Attorney General
Respondent
Commissioner of Lands
Respondent
Director of Land Adjudication
Respondent
Chief Land Registrar
Respondent
District Land Registrar Mbeere District (South)
Respondent
County Council of Mbeere
Respondent
Procedural Posture
Constitutional Petition / Interlocutory Application—leave to File Replying Affidavit and Submissions
Legal Issues
- 1 Whether the respondents should be barred from filing replying affidavits due to delay.
- 2 Whether the petitioners' own delay in filing submissions affects the fairness of the proceedings.
- 3 Whether all parties should be given equal opportunity to present their case.
Ratio Decidendi
The court held that since the petitioners themselves had not complied with the timelines for filing submissions, it would be unjust to bar the respondents from filing their replying affidavits on grounds of delay. The court emphasized the importance of all parties being given an equal opportunity to present their case so that the matter could be decided on its merits. The objection to the respondents' application for leave was found to be without merit. The Attorney General was granted 14 days to file and serve replying affidavits for the 1st–5th respondents, with corresponding leave for the 6th respondent and petitioners to reply within 7 days. The court set a mention date to confirm...
Court Disposition
Objection dismissed; leave granted to respondents to file replying affidavits.
Orders
- Attorney General granted 14 days to file and serve replying affidavits for 1st–5th respondents.
- 6th respondent and petitioners granted 7 days to file and serve any reply.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT EMBU
Petition 7 of 2011
IN THE MATTER OF ARTICLES 62(2), 63(1), (2), (3) and (4) OF THE CONSTITUTION OF KENYA
AND
THE LAND ADJUDICATION ACT, CAP.284 LAWS OF KENYA
AND
IN THE MATTER OF CONTRAVENTION AND/0R APPREHENDED CONTRAVENTION OF MBEERE COMMUNITY RIGHTS AND INTEREST IN LAND IN ALL THAT TRUST LAND KNOWN AS MWEA WITHIN THE AREAS KNOWN AS KARABA, WACHORO, RIAKANAU, GATEGI AND MAKIMA UNDER ARTICLES 62(2), 63(1), (2), (3) AND (4) OF THE CONSTITUTION OF KENYA
BETWEEN
MBEERE ELDERS ADVISORY WELFARE GROUP …………1ST PETITIONER
DAVID MITI NJUKI …………………………………………….2ND PETITIONER
NJERU BANDA ………………………………………………. 3RD PETITIONER
ESTON NYAGA NTHIGA ………………..…………………… 4TH PETITIONER
SERAPHINO NGARI … ……………………………………… 5TH PETITIOINER
AND
THE ATTORNEY GENERAL ………………………………… 1ST RESPONDENT
COMMISSIONER OF LANDS ………………………………. 2ND RESPONDENT
DIRECTOR OF LAND ADJUDICATION ………...………….. 3RD RESPONDENT
CHIEF LAND REGISTRAR …………………………………. 4TH RESPONDENT
DISTRICT LAND REGISTRAR
MBEERE DISTRICT (SOUTH) …………………………….. 5TH RESPONDENT
THE COUNTY COUNCIL OF MBEERE ……..………………. 6TH RESPONDENT
R U L I N G
I had given directions and granted Leave to the Attorney General on behalf of the 1st – 5th Respondents to file their replying affidavit within 14 days.
However Mr. Kamunde has opposed this grant of Leave to the Respondents for what he terms deliberate delays. He submits that the Attorney General was served last year and has not filed any replying affidavit inspite of the several meetings he has had with them. In other words Mr. Kamunde wants this Court to bar the five Respondents from filing a reply to the matter pending herein.
I do note from this record that on 25/4/2012 Mr. Okwaro (then for 6th Respondent) and the Petitioners Counsel agreed to file written submissions. I gave a mention date for 4/6/2012. On 4/6/2012 no Ruling date would be given because the Petitioners had not filed submissions. Mr. Kamunde asked for 7-10 days to comply and a mention date taken for today. Even as the matter is before me for mention today the Petitioners have not filed their submissions the reason being that Mr. Njaragua has just come on record and needs to peruse the record. The Attorney General represents five Respondents who are alleged to be committing the acts complained of. They have filed Grounds of opposition to the Petition. If anything these are the officers who have to explain to this Court if the accusations leveled against them are true why they are doing them.
If this Court accommodates the Petitioners when they are not working within the time lines given by the said Court then the other parties ought also to be accommodated under the same breath. This is the only way all issues will be brought on board and the matter is decided on merits. I therefore find no merit in the objection, and grant the Attorney General 14 days within which the 1st – 5th Respondents will file and serve their Replying affidavits. The 6th Respondent and Petitioners will have corresponding Leave to file and serve any reply within 7 days. Thereafter the parties to file and exchange written submissions. Counsel for Petitioners to be the 1st to file and serve before the others can respond. Mention on 24/9/2012 to confirm compliance. The earlier orders issued in the morning are set aside.
DATED, SIGNED AND DELIVERED AT EMBU THIS 2ND DAY OF JULY 2O12
H.I. ONG’UDI
JUDGE
In the presence of:
All 3 Counsels
Njue – C/c