https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10195

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL & HUMAN RIGHTS DIVISION** **PETITION NO. 224 OF 2020** **MARTIN OPOLLO MIYOYO …… ............PETITIONER/RESPONDENT** **-VERSUS-** **THE CHIEF OF THE KENYA** **DEFENCE FORCES ………………………………...…...1ST RESPONDENT** **PRINCIPAL SECRETARY** **STATE DEPARTMENT OF DEFENCE ………..………2ND RESPONDENT** **THE HON. ATTORNEY GENERAL …. 3RD RESPONDENT/APPLICANT** **RULING** 1. Vide notice of motion filed by the 3rd Respondent, the Hon. Attorney General dated 6th May 2026 premised under ***Article 50 (1), 159 (2) (b) of the Constitution, Order 2 Rule 15, Order 51 Rule (1) of the Civil Procedure Rules and Sections IA, 3A and 63 (e) of the Civil Procedure Act, Cap 21 of the Laws of Kenya*** and all other enabling Provisions of the law, the Applicant seeks the following ORDERS: 2. ***THAT this Honourable Court be pleased to hear this application in priority to the hearing of the main suit herein;*** 3. ***THAT this Honourable Court be pleased to find that the Supporting Affidavit to the Further Amended Petition dated 17th December 2025 has been filed and introduces new and additional evidence without the Petitioner seeking leave of the court.*** 4. ***THAT the Honourable Court be pleased to expunge the Supporting Affidavit to the Further Amended Petition dated 17th December 2025 from the Court record in its entirety.*** 5. ***THAT the Honourable Court be pleased to issue any other prayer that it may deem fit and just to grant.*** 6. ***THAT costs of this application be provided for.*** 7. The Application is founded on the grounds on its face and further supported by the sworn Affidavit of Grace Ajierh, the 1st Respondent’s Legal Officer in which she avers that the Petitioner initially sought and obtained leave from the Court to amend and filed the Amended Petition through an Application dated 13th February 2024, with the annexed draft intended solely to introduce new parties as Respondents. 8. That pursuant to this leave, the Petitioner filed a Further Amended Petition on 1st July 2025 without a supporting affidavit, to which the Respondents filed their responses on 1st December 2025. Subsequently, on 3rd December 2025, the Court granted the Petitioner leave to file a Supporting Affidavit to accompany the Further Amended Petition. 9. It is deposed that the Supporting Affidavit filed on 17th December 2025 goes beyond the scope of the Court’s leave by irregularly introducing entirely new evidence, additional facts and a Medico-Legal report dated 5th December 2025 by Dr. G.K. Mwaura of Kinoo Medical Clinic. 10. The Respondents contend that this new material, detailing the nature and extent of alleged injuries, was not included in either the initial draft or the Further Amended Petition and would be prejudicial if admitted because the document was obtained over 40 years after the cause of action arose. They argue that the Petitioner was already in possession of these documents and is using the affidavit to cure gaps in his case after viewing the Respondents’ defence, effectively seeking an unfair second bite at the cherry. 11. The Respondents assert that admitting these new facts materially alters the foundation of the case and severely prejudices them, as they have already filed their response and are deprived of an opportunity to rebut the evidence. Consequently, the Respondents argue that the introduction of this new evidence violates their right to a fair hearing and constitutes an abuse of the court process. They maintain that it is in the interest of justice, good faith and the expeditious disposal of the suit to allow their application and permanently expunge the controversial Supporting Affidavit from the Court record. 12. In response to the Application, the Petitioner/Respondent filed Grounds of Oppositiondated **5th June 2026** raising the following grounds: - 13. ***The Application is misconceived and does not lie.*** 14. ***The Application lacks merit.*** 15. ***The Application is an abuse of court process.*** 16. The Application was canvassed by way of written submissions. 17. **The Applicant’s submissions** are dated **2nd June 2026**. Learned Special State Counsel Mr. Musyoka submits that the Petitioner’s Supporting Affidavit, dated 17th December 2025, should be rejected because it improperly introduces new and additional evidence outside the scope of the Court’s leave. Citing ***Mohamed Abdi Muhamud v Ahamad Abdulahi Mohamad & 3 Others (2018) eKLR*** where the court declared the circumstances under which additional evidence may be admitted and ***Patrick Thoithi Kanyuira v Kenya Airports Authority, Petition (Application) No. 7 of 2017*** where the court found that the Applicant was attempting to fill up omissions in his case through the additional documentary evidence in prejudice of the Respondent; it is submitted by Counsel for the Respondents that a party must demonstrate due diligence and exceptional circumstances to admit fresh evidence as stated in the case of ***Walter Joe Mburu v Abdul Shakoor Sheikh & 3 Others, Civil Appeal No. 195 of 2002 (2015) eKLR***. 18. The Respondents contend that the information was either already in the Petitioner’s possession at the start of the suit or represents an afterthought designed to fill gaps, patch up omissions and craft a fresh case after the Respondents had already filed their response on 1st December 2025. Counsel further cites other authorities in support of his argument such as ***Kuwinda Rurinja Co. Ltd v Kuwinda Holdings Ltd and 13 Others, Civil Appeal (Application) No. 8 of 2003 (2013) eKLR***; and ***Safe Cargo Limited v Embakasi Properties Limited & 2 Others (2019) eKLR***. 19. Specifically, the Respondents object to several paragraphs of the Supporting Affidavit being paragraph 8 of page 2, and paragraphs 2, 3, 4, 6, and 7 of page 3 which present new particulars concerning the nature of the Petitioner’s injuries and details of his alleged detention. They argue these additions materially alter the case through the back door. Furthermore, they strongly object to the inclusion of a new Medico-Legal report by Dr. G. K. Mwaura dated 5th December 2025, asserting that parties are strictly bound by their pleadings as held in ***Adetoun Oladeji (NIG) Ltd v Nigeria Breweries Plc S.C. 91/2002*** and that evidence at variance with those pleadings must be completely disregarded. 20. Counsel for the Respondents submitted that allowing this new evidence regarding an event from over forty years ago violates their right to a fair hearing under ***Article 50 of the Constitution***, as they are deprived of an opportunity to mount a proper rebuttal. Asserting that the Petitioner is seeking an unfair second bite of the cherry to cover up loopholes, the Respondents request the Court to safeguard constitutional principles under ***Article 159*** by finding the Supporting Affidavit improperly filed, expunging it from the Court record and allowing their application with costs. 21. **The Petitioner/Respondent** filed his **submissions** through his legal counsel dated **5th June 2026**. Learned Counsel for the Petitioner and he framed one issue for determination being ***whether the Application is merited and should be allowed***. Counsel for the Petitioner submits in opposition to the application, arguing that it is completely misconceived, contradictory and unsupported by law. 22. He explains that an affidavit is not a pleading, but rather a vehicle for evidence. Consequently, that it cannot be struck out under the procedural parameters governing pleadings. Further, that the Respondents failed to cite any specific procedural rule under ***Order 19 of the Civil Procedure Rules, 2010*** which governs affidavits that the document allegedly violated. The Petitioner argues that whether the affidavit contains information or medical evidence not strictly captured in the pleadings is a matter to be determined at the trial through cross-examination, rather than an interlocutory motion. He further asserts that under ***Rule 3 of Order 19***, an affidavit is to contain facts within the deponent’s knowledge, citing the sources and the grounds of those facts. 23. Finally, the Petitioner argues that the motion relies on a flawed and technical sense of justice. That ***Articles 48, 50 (1), and 159 (2) (d)*** of the Constitution require the court to consider all available evidence to ensure a fair hearing without being hindered by mere procedural technicalities. The Petitioner asserts that the Respondents suffered no prejudice, as they had the right to file a Further Replying Affidavit in response to the new affidavit without even needing the court’s leave. Counsel describes the prayer to strike out the filing as a draconian remedy and an abuse of the court process and further asks the Court to dismiss the Application with costs and to direct the Respondents to seek leave to file a further response instead. **Analysis and Determination** 1. I have considered the application, response thereto and the submissions for and against the application. The only issue for my determination is ***whether the Application to strike out the Petitioner’s further affidavit is merited***. 2. Before delving into the merits of this issue, it is necessary to set out the background and the procedural trajectory of this matter. On 3rd December 2025, during the hearing, it was discovered that the Petitioner’s Further Amended Petition dated 1st July 2025 lacked a Supporting Affidavit. This Court differently constituted, (Hon. Mwita, J., (*as he then was*) granted the Petitioner 14 days leave to file the missing Supporting Affidavit. The Petitioner complied by filing the impugned affidavit within the designated timeline on 17th December 2025. 3. Following the elevation of the trial judge to the appellate court, the matter came up for directions before this Court on 29th April 2026, prompting the Respondents to file the instant application challenging the contents of the filed Supporting Affidavit. 4. The Respondents contend that the Petitioner abused the leave granted by the Court. They argue that the Court merely granted leave to file a standard supporting affidavit to verify the existing Further Amended Petition but that instead, the Petitioner allegedly used the opportunity to introduce entirely new evidence, fresh factual particulars regarding the nature of injuries and detention as well as a new Medico-Legal report by Dr. G. K. Mwaura dated 5th December 2025. 5. Through Special State Counsel Mr. Musyoka, the Respondents submit that these additions materially alter the substratum of the petition. They argue that because they had already filed their response on 1st December 2025, the introduction of this evidence causes severe prejudice, ambushes their defense and infringes upon their right to a fair hearing under ***Article 50 of the Constitution.*** They rely on the case cited in their submissions establishing that parties are bound by their pleadings and cannot introduce fresh evidence via the back door to patch up weak points. 6. The Petitioner, on the other hand through his legal counsel, vigorously resists the motion, contending that it is misconceived since an affidavit serves as a vehicle for evidence rather than a pleading hence, the procedural rules on striking out defective pleadings are inapplicable. Counsel for the petitioner argues that the Respondents have not identified any breach of ***Order 19 of the Civil Procedure Rules, 2010.*** Hemaintains that the credibility and weight of the medical evidence are issues reserved for trial, where cross‑examination will suffice. 7. Relying on ***Articles 48, 50(1), and 159(2)(d) of the Constitution***, the Petitioner urges the Court to uphold substantive justice over technicalities, asserting that any prejudice to the Respondents can be cured by granting leave to file a Further Replying Affidavit rather than resorting to the drastic remedy of striking out. 8. The law governing the striking out of affidavits is **Order 19 rule 6 of the Civil Procedure Rules** which states that: - ***6. Striking out matter [Order 19, rule 6]*** ***The court may order to be struck out from any affidavit any matter which is scandalous, irrelevant or oppressive.*** 1. In line with the above, the Court is guided by the provisions of **Sections 1A, 1B and 3A of the Civil Procedure Act.** Section 1A of the Act sets out the overriding objective of the Act as follows:- *(1)* ***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 governed by the Act.*** 1. Section 3A of the Act provides:- ***Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.*** 1. Additionally, Rule 3 of the Mutunga Rules provides for the scope and objectives of the Rules and stipulates that: ***3 (1)these rules shall apply to all proceedings made under Article 22 of the Constitution*** ***(2) The overriding objectives of these rules is to facilitate access to justice for all persons as required under Article 48 of the Constitution.*** 1. ***The Rules shall be interpreted in accordance with Article 259(1) of the Constitution and shall be applied with a view to advancing and realising-*** 2. ***Rights and fundamental freedoms enshrined in the Bill of Rights*** 3. ***Values and principles of the Constitution*** 4. ***The Court in exercise of its jurisdiction under these rules shall facilitate the just, expeditious*** ***In the present case, it was undisputed that, proportionate and affordable resolution of all cases*** 1. ***For the purpose of furthering the overriding objective, the Court shall handle all matters presented before it to achieve the-*** 2. ***Just determination of the proceedings*** 3. ***Efficient use of the available and administrative resources*** 4. ***Timely disposal of proceedings at a cost affordable to the respective parties and*** 5. ***Use of appropriate technology*** 6. the Petitioner was granted leave to file his further affidavit in support of the amended petition. The respondents argue that leave to file a supporting affidavit is inherently tied to the verification of the facts already pleaded in the corresponding petition. The Respondents have beef with the impugned affidavit which attaches a Medico-Legal report dated 5th December 2025, which document was adduced after the Further Amended Petition was filed and *after* the Respondents had filed their response. This report, alongside the specific paragraphs detailing detention particulars, undeniably injects fresh evidentiary material into the record. 7. This Court does not agree with the Petitioner’s averments that the impugned Affidavit merely proves the pleadings because the introduction of a post-dated medical report has the potential of creating a shifting target for the defense. The pleadings and evidence as they stand are now evolving. 8. As to whether this is fatal to the impugned affidavit or not, this Court bears in mind the Overriding Objectives of the rule 3 of the Mutunga Rules above reproduced. 9. Further, it is important to note that Rule 11 of the Mutunga Rules do not mandate the filing of an affidavit in support of the petition, for the petition to be competent. The Rule provides: ***11(1) the petition filed under these rules may be supported by an affidavit.*** ***(2) if any party wishes to rely on any document, the document shall be annexed to the supporting affidavit or the petition where there is no supporting affidavit.*** 1. Additionally, Rule 21 on evaluating the petition for directions and allocating dates, sub rule 2 provides that 2. ***a party who wishes to file further information at any stage of the proceedings may do so with the leave of the Court.*** 3. It follows that evidence can be annexed to the petition or filed later without necessarily filing an affidavit, since there is no mandatory requirement for filing of a supporting or verifying affidavit to the petition. This position is supported by Rule 21 which does not say further affidavit. It says ***further information*** and information can be in any form either in a statement or a document or an affidavit. 4. In **Nicholas Salat v IEBC & 6 Others, CA (Application) No 228 of 2013,)** the Court of Appeal -Ouko JA (as he then) was stated thus: - ***“Deviations from and lapses in form and procedures which do not go to the jurisdiction of the Court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the Court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness.”*** 1. Although the issue of the impugned affidavit is not a procedural infraction, the general principle emanating from the above case is that the courts strive to sustain rather than strike out pleadings on purely technical grounds. The key question is whether striking out the entire affidavit is the appropriate judicial response in this case. 2. Courts are replete with authorities that warn against striking out a party’s pleadings and supporting documents. In **Dyson v. Attorney General [1911] 1 KB 410 at 418** Fletcher Moulton L.J. held thus: - ***“To my mind, it is evident that our judicial system would never permit a plaintiff to be driven from the judgment seat in this way without any court having considered his right to be heard except in cases where the cause of action was obviously and almost incontestably bad.”*** 1. In **Madison Insurance Company Limited v Augustine Kamanda Gitau [2020] eKLR** the court stated: - ***“11. The power to strike out pleadings must be sparingly exercised and it can only be exercised in clearest of cases. If a pleading raises a triable issue even if at the end of the day, it may not succeed then the suit ought to go to trial…”*** 1. The Court of Appeal also stated that striking out a pleading must be considered as a last resort because it is a drastic measure. In **Cooperative Merchant Bank Ltd v George Fredrick Wekesa Civil Appeal No. 54 of 1999** as cited with approval in **Jubilee Insurance Co. Ltd v Grace Anyona Mbinda [2016] eKLR,** the court observed that: - ***“The power of the court to strike out pleadings under Order 6 Rule 13 (1) (b) (c) & (d) is discretionary ..... Striking out a pleading is a draconian act, which may only be resorted to, in plain cases. Whether or not a case is plain in a matter of fact....”*** 1. Similarly, in **Kivanga Estates Limited v National Bank of Kenya Limited [2017] KECA 591 (KLR)** the Court of Appeal again echoed the decision in D**.T. Dobie & Company (Kenya) Ltd v Muchina [1982] eKLR** stating that: - ***“It is not for nothing that the jurisdiction of the court to strike out pleadings has been described variously as draconian, drastic, discretionary, a guillotine process, summary and an order of last resort. It is a powerful jurisdiction capable of bringing a suit to an end before it has even been heard on merit. Yet a party to civil litigation is not to be deprived lightly on his right to have his suit determined in a full trial. The rules of natural justice require that the court must not drive away any litigant from the seat of justice, without a hearing, however weak his or her case may be. The flip side is that it is also unfair to drag a person to the seat of justice when the case against him is clearly a non-starter. The exercise of the power to strike out pleadings must balance these two rival considerations ... Striking out a pleading though draconian, the Court will in its discretion resort to it, where, for instance the court is satisfied that the pleading has been brought in abuse of its process or where, it is found to be scandalous, frivolous and vexatious”.*** See also **Crescent Construction Co. Ltd v Delphis Bank Ltd [2007] KECA 500 (KLR)** 1. I observe that the Court granted the petitioner leave to file a further supporting affidavit to the further amended petition on 3rd December 2025 to attach documents in support of the amended petition and there was a no objection recorded. 2. I have read the further amended petition dated 1st July 2025. It is not correct as stated by the respondents that it was merely adding parties. The amendments are quite elaborate. They introduce facts of alleged torture, injuries and other violations which the petitioner now wanted to adduce documents in support thereof. 3. In the circumstances, although the respondents claim that they will suffer prejudice if the Court allows the affidavit with the annexed documents because they have already responded and cannot rebut an occurrence from over forty years ago, I find that the claim is unfounded. The respondents are fully entitled to file a Further Replying Affidavit to address the Medico-Legal report and the details of the injuries arising from the alleged detention. 4. In the end, I find the application by the respondents not merited. I decline to grant the prayer to strike out the impugned affidavit. I order that 5. ***The Respondents’ Motion dated 6th May 2026 seeking to strike out and expunge the Petitioner’s Supporting Affidavit sworn on 17th December 2025 is hereby dismissed.*** 6. ***The Respondents are hereby granted leave to file and serve a Further Replying Affidavit and any accompanying expert or rebuttal reports, if need arises, limited to responding to the new matters and the Medico-Legal report contained in the Petitioner’s Supporting Affidavit.*** 7. ***The said Further Replying Affidavit shall be filed and served within fourteen (21) days from the date of this ruling.*** 8. ***The petitioner shall thereafter have 14 days of being served to file and serve a further affidavit.*** 9. ***This being an old matter and as the hearing was ordered to be by way of viva voce evidence, hearing shall be on 30th November, 2026 in open Court.*** 10. ***Each party to bear their own costs of the application.*** 11. Orders accordingly. **Dated, Signed and Delivered virtually at Nairobi this 9th day of July, 2026** **R.E. ABURILI** **JUDGE**