[2006] KEHC 1787 (KLR)
The court found that Order LIII Rule 4(2) of the Civil Procedure Rules expressly allows the court, at the hearing of the motion, to permit further affidavits if they address new matters arising from the replying affidavit. Although the applicant did not specify the new matters, the court exercised its discretion in...
Source-derived case information.
- Citation
- [2006] KEHC 1787 (KLR)
- Parties
- Applicant: Republic; Respondent: Chairman Kigumo Division Land Disputes Tribunal; Interested Party: Paul Ndungu Wanyeki
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 183 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Leave to File Further Affidavit
- Outcome
- Leave to file a further affidavit granted, subject to conditions.
- Judges
- GG Okwengu
- Legal Topics
- Judicial Review, Certiorari, Further Affidavit, Leave of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Chairman Kigumo Division Land Disputes Tribunal
Respondent
Paul Ndungu Wanyeki
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Leave to File Further Affidavit
Legal Issues
- 1 Whether the applicant is entitled to leave to file a further affidavit in response to new matters raised in the replying affidavit.
- 2 Whether Order LIII Rule 4 of the Civil Procedure Rules permits the filing of further affidavits.
Ratio Decidendi
The court found that Order LIII Rule 4(2) of the Civil Procedure Rules expressly allows the court, at the hearing of the motion, to permit further affidavits if they address new matters arising from the replying affidavit. Although the applicant did not specify the new matters, the court exercised its discretion in favour of the applicant, granting leave to file a further affidavit, provided it is strictly limited to new issues raised in the replying affidavit and is filed within 14 days. The court thus balanced the need for procedural fairness with the requirements of the rules, ensuring that the applicant is not prejudiced by new matters raised late in the process.
Court Disposition
Leave to file a further affidavit granted, subject to conditions.
Orders
- The applicant is granted leave to file a further affidavit limited to new issues raised in the replying affidavit.
- The further affidavit must be filed within 14 days from the date of the ruling.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Misc Civ Appil 183 of 2004
REPUBLIC…………….………………………………............................................……APPLICANT
VERSUS
CHAIRMAN KIGUMO DIVISION LAND DISPUTES TRIBUNAL……..………...RESPONDENT
PAUL NDUNGU WANYEKI………….…..........................................………INTERESTED PARTY
R U L I N G
Paul Ndungu Wanyeki who describes himself as the interested party has come to this court under Order LIII Rule 3 of the Civil Procedure Rules, Section 8(2) of the Law Reform Act and Section 3A of the Civil Procedure Act seeking an order of certiorari to remove to this court the proceedings before the Kigumo Senior Resident Magistrate’s Court in Land Disputes Tribunal Number 23 of 2004 in respect of land parcel Loc.2/Gacharage/1053 for the purposes of the same being quashed. Before the application could proceed to hearing Mr. Kirubi who was holding brief for the advocate for the applicant applied for an adjournment and leave to file a further affidavit in response to the replying affidavit.
Mr. Kiminda who appears for the Respondent objects on the ground that there are no provisions under order LIII rule 4 of the Civil Procedure Rules for the court to grant leave for a further affidavit to be filed. Mr. Kirubi however argues that the applicant is entitled under order L rule 16 of the Civil Procedure Rules to leave to file a further affidavit since new matters have been raised in the replying affidavit.
I have carefully perused Order LIII rule 4 of the Civil Procedure Rules and do find that sub-rule 2 clearly provides that the Court may on the hearing of the motion allow further affidavits to be used if they deal with new matters arising out of the replying affidavit.
In this case it is alleged that there are new matters raised which the applicant needs to respond to in a further affidavit. Although the court has not been told what these new matters are, I will exercise my discretion in the applicant’s favour and grant the applicant leave to file a further affidavit subject to the same being limited to new issues raised in the replying affidavit and the same being filed within 14 days from the date hereof.
Dated, signed and delivered this 10th day of July 2006.
H. M. OKWENGU
JUDGE