[2019] KEELC 4383 (KLR)
The court held that while it is unprocedural for parties to file documents without leave of the court, such procedural lapses are not fatal and do not automatically render the documents inadmissible. The respondent's counsel provided a sufficient basis for introducing the new affidavit, namely the inclusion of...
Source-derived case information.
- Citation
- [2019] KEELC 4383 (KLR)
- Parties
- Applicant: Republic; Respondent: County Government of Meru; Respondent: Physical Planner Meru County; Applicant: Stephen Michuki M’Kiunga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 16 of 2018
- Procedural Posture
- Judicial Review / Ruling on Admissibility of Affidavit
- Outcome
- application to abandon earlier affidavit allowed; new affidavit admitted
- Legal Topics
- Judicial Review Procedure, Affidavit Admissibility, Court Leave for Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
County Government of Meru
Respondent
Physical Planner Meru County
Respondent
Stephen Michuki M’Kiunga
Applicant
Procedural Posture
Judicial Review / Ruling on Admissibility of Affidavit
Legal Issues
- 1 Whether the respondent can abandon an earlier filed affidavit and substitute it with a new one containing annexures without leave of the court.
- 2 Whether the filing of a new affidavit raising new issues after a rejoinder is unprocedural and inadmissible.
Ratio Decidendi
The court held that while it is unprocedural for parties to file documents without leave of the court, such procedural lapses are not fatal and do not automatically render the documents inadmissible. The respondent's counsel provided a sufficient basis for introducing the new affidavit, namely the inclusion of annexures omitted in the earlier version. The court exercised its discretion to allow the respondent to abandon the earlier affidavit and admit the new one as a proper document. The exparte applicant was granted liberty to file any further affidavit in rejoinder to the new response.
Court Disposition
application to abandon earlier affidavit allowed; new affidavit admitted
Orders
- The respondent is allowed to abandon the replying affidavit filed on 28.11.2018.
- The new affidavit filed on 29.1.2019 is admitted as a proper document.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
JUDICIAL REVIEW NO. 16 OF 2018
IN THE MATTER OF APPROVAL FOR BUILDING OF TEMPORARY STRUCTURE & ACCEPTANCE OF LAND RENT IN MERU MUNICIPALITY BLOCK 11/287
AND
IN THE MATTER OF AN APPLICATION FOR AN ORDER OF MANDAMUS BY WAY OF JUDICIAL REVIEW
BETWEEN
REPUBLIC...............................................................................APPLICANT
AND
THE COUNTY GOVERNMENT OF MERU.............1ST RESPONDENT
THE PHYSICAL PLANNER MERU COUNTY.......2ND RESPONDENT
AND
STEPHEN MICHUKI M’KIUNGA...................EXPARTE APPLICANT
RULING
1. On 30. 1.2019, counsel for respondent sought to abandon their replying affidavit filed on 28. 11. 2018 in lieu of a freshly filed one (filed on 29. 1.2019) on the basis that the earlier one had no annexures.
2. This application was objected to by counsel for the exparte applicant who averred that it was unprocedural as they had already filed their rejoinder via a supplementary affidavit. It is also averred that the new affidavit has raised new issues.
3. I find that it is certainly unprocedural for parties to file documents haphazardly without leave of the court. It is also messy. It is however not fatal and such documents are not necessarily in admissible. The hitch can be cured by making an application to have the documents admitted and laying a basis for the introduction of the same. Respondents counsel has met this criteria as they have stated that they are introducing annexures which were omitted in the earlier affidavit.
4. I therefore allow the application by the respondent to abandon the earlier affidavit of 28. 11. 2018 and the new affidavit of 29. 1.2019 is hereby admitted as a proper document.
5. The exparte applicant is at liberty to still file any further affidavit in rejoinder to the response of 29. 1.2019
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 6TH MARCH, 2019 IN THE PRESENCE OF:-
C/A: Kinoti
M. Kariuki for respondent
HON. LUCY. N. MBUGUA
ELC JUDGE