[2019] KEHC 3898 (KLR)
The court exercised its discretion to allow the Respondents' application for adjournment, noting that while the court had set hearing dates, it had not issued witness summons for the absent witnesses. The court emphasized the imperative of substantive justice, which requires hearing all parties before making a...
Source-derived case information.
- Citation
- [2019] KEHC 3898 (KLR)
- Parties
- Applicant: Nubian Rights Forum; Applicant: Kenya Human Rights Commission; Applicant: Kenya National Commission on Human Rights; Respondent: The Hon. Attorney-General; Respondent: The Cabinet Secretary, Ministry of Interior & Co-ordination of National Government; Respondent: The Principal Secretary, Ministry of Interior & Co-ordination of National Government; Respondent: The Director National Registration; Respondent: The Cabinet Secretary, Ministry of Information, Communication & Technology; Respondent: The Speaker, National Assembly; Respondent: Kenya Law Reform Commission
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 56, 58 & 59 f 20 of 2019
- Procedural Posture
- Constitutional Petition / Interlocutory Application for Adjournment of Hearing Dates
- Outcome
- Application for adjournment allowed with strict conditions.
- Legal Topics
- Adjournment of Hearing, Right to Fair Hearing, Judicial Discretion, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nubian Rights Forum
Applicant
Kenya Human Rights Commission
Applicant
Kenya National Commission on Human Rights
Applicant
The Hon. Attorney-General
Respondent
The Cabinet Secretary, Ministry of Interior & Co-ordination of National Government
Respondent
The Principal Secretary, Ministry of Interior & Co-ordination of National Government
Respondent
The Director National Registration
Respondent
The Cabinet Secretary, Ministry of Information, Communication & Technology
Respondent
The Speaker, National Assembly
Respondent
Kenya Law Reform Commission
Respondent
Procedural Posture
Constitutional Petition / Interlocutory Application for Adjournment of Hearing Dates
Legal Issues
- 1 Whether the Respondents should be granted an adjournment to secure the attendance of their witnesses for cross-examination.
- 2 Whether granting the adjournment would unduly delay justice or prejudice the Petitioners.
Ratio Decidendi
The court exercised its discretion to allow the Respondents' application for adjournment, noting that while the court had set hearing dates, it had not issued witness summons for the absent witnesses. The court emphasized the imperative of substantive justice, which requires hearing all parties before making a decision. However, the court also recognized the urgency of the consolidated petitions and warned that this would be the last opportunity for the Respondents to present their witnesses. Failure to comply would entitle the court to draw adverse inferences regarding the witnesses' evidence. The decision balanced the need for fairness to all parties with the need to avoid unnecessary...
Court Disposition
Application for adjournment allowed with strict conditions.
Orders
- The Respondents' oral application for adjournment is allowed only to the extent of setting additional hearing dates on 2nd and 3rd October 2019 from 10.00 am for the attendance, cross-examination, and re-examination of the said witnesses.
- In the event of non-compliance by the Respondents, the court will be at liberty to make adverse inferences as regards the said witnesses’ evidence.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
CONSOLIDATED PETITIONS NO. 56, 58 & 59 OF 2019
BETWEEN
NUBIAN RIGHTS FORUM...............................................................................1ST PETITIONER
KENYA HUMAN RIGHTS COMMISSION...................................................2ND PETITIONER
KENYA NATIONAL COMMISSION ON HUMAN RIGHTS....................3RDPETITIONER
AND
THE HON. ATTORNEY-GENERAL.............................................................1ST RESPONDENT
THE CABINET SECRETARY, MINISTRY OF
INTERIOR& CO-ORDINATION OF NATIONAL GOVERNMENT......2ND RESPONDENT
THE PRINCIPAL SECRETARY, MINISTRY OF
INTERIOR& CO-ORDINATION OF NATIONAL GOVERNMENT......3RD RESPONDENT
THE DIRECTOR NATIONAL REGISTRATION........................................4TH RESPONDENT
THE CABINET SECRETARY, MINISTRY OF INFORMATION,
COMMUNICATION & TECHNOLOGY.......................................................5TH RESPONDENT
THE SPEAKER, NATIONAL ASSEMBLY...................................................6TH RESPONDENT
KENYA LAW REFORM COMMISSION.....................................................7TH RESPONDENT
AND
CHILD WELFARE SOCIETY............................................................1ST INTERESTED PARTY
AJIBIKA SOCIETY............................................................................2ND INTERESTED PARTY
MUSLIMS FOR HUMAN RIGHTS INITIATIVE..........................3RD INTERESTED PARTY
HAKI CENTRE..................................................................................4TH INTERESTED PARTY
LAW SOCIETY OF KENYA.............................................................5TH INTERESTED PARTY
INFORM ACTION.............................................................................6TH INTERESTED PARTY
BUNGE LA WANAINCHI.................................................................7TH INTERESTED PARTY
INTERNATIONAL POLICY GROUP............................................8TH INTERESTED PARTY
TERROR VICTIMS SUPPORT INITIATIVE...............................9TH INTERESTED PARTY
RULING NO. 4
This suit was set for hearing from 23rd September 2019 to 27th September 2019. On 23rd September 2019 before the commencement of the hearing, Mr. Njoroge Regeru, the learned counsel for the 2nd and 3rd Respondents, informed the Court that the Respondents had experienced difficulty in securing the attendance of three of their witnesses who were to be cross-examined, namely Mr. Loyford Muriithi, Eng. Dr. Karanja Kibicho and Mr. Jerome Ochieng. His explanation was that the said witnesses were engaged in official business out of Nairobi and the country during the dates the hearing. He requested for a hearing date after 1st October 2019, for his witnesses to be availed for cross-examination as directed by the Court and requested by the Petitioners.
The Petitioners, led by Hon. Martha Karua SC, opposed the application, and contended that the same was a deliberate delaying tactic by the Respondents, who were taking the court for granted. They urged the court not to adjourn the hearings to a further date, given that one of their expert witnesses had travelled all the way from India, and this matter still remains urgent.
This Court has considered the application by Mr. Regeru, and the arguments made by the parties. Under Article 159 of the Constitution, this court is guided by various principles, including that justice shall be done to all, irrespective of status; justice shall not be delayed; justice shall be administered without undue regard to procedural technicalities; and that the purpose and principles of the Constitution shall be protected and promoted.
In addition, Rule 30 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice & Procedure Rules of 2013 gives discretion to this court to extend time.
It is notable that this Court gave detailed directions as to the hearing of the consolidated Petitions herein, and although this Bench did not specify the dates and times witnesses were to be present, it was envisaged that they would be availed when required during the dates set for hearing. However, as this court did not issue any witness summons to the said witnesses, and given the imperative of substantive justice that requires this court to hear all parties in a case before making a decision, we have decided to exercise our discretion in the Respondents’ favour. This concession notwithstanding, we are also constrained to point out that given the nature and urgency of the matters presented in the consolidated Petitions herein, this will be the last opportunity given to the Respondents to avail the said witnesses.
In the premises, the Respondents’ oral application is allowed only to the extent of setting additional hearing dates on2nd and 3rd October 2019 from 10. 00 am to receive the said witnesses’ evidence, and for the said witnesses’ cross-examination and re-examination. In the event of non-compliance by the Respondents, this Court will be at liberty to make adverse inferences as regards the said witnesses’ evidence.
Orders accordingly.
DATED AND SIGNED AT NAIROBI THIS 25TH DAY OF SEPTEMBER 2019
P. NYAMWEYA MUMBI NGUGI W. KORIR
JUDGE JUDGE JUDGE