[2007] KEHC 3452 (KLR)
The court found that the issue of the Minister of Local Government's consent, which the applicants sought to introduce through a further affidavit, was not a new matter arising from the respondent's affidavit. Instead, it was already pleaded as a ground in the statutory statement and notice of motion. Therefore, the...
Source-derived case information.
- Citation
- [2007] KEHC 3452 (KLR)
- Parties
- Applicant: Republic; Respondent: Eldoret Water & Sanitation Company Limited; Applicant: Booker Onyango; Applicant: Meshack Omondi Ageng’o; Applicant: John Kwambai Rotich
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 97 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Further Affidavit
- Outcome
- application for leave to file further affidavit rejected with costs to the respondent
- Legal Topics
- Judicial Review Procedure, Further Affidavits, Termination of Employment, Ministerial Consent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Eldoret Water & Sanitation Company Limited
Respondent
Booker Onyango
Applicant
Meshack Omondi Ageng’o
Applicant
John Kwambai Rotich
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Further Affidavit
Legal Issues
- 1 Whether the applicants should be granted leave to file a further affidavit in support of their judicial review application.
- 2 Whether the issue of lack of Ministerial consent is a new matter arising from the respondent's affidavit.
Ratio Decidendi
The court found that the issue of the Minister of Local Government's consent, which the applicants sought to introduce through a further affidavit, was not a new matter arising from the respondent's affidavit. Instead, it was already pleaded as a ground in the statutory statement and notice of motion. Therefore, the requirements of Order 53 Rule 4(2) were not satisfied, and there was no basis to allow the filing of a further affidavit. The application for leave was accordingly rejected, and costs were awarded to the respondent.
Court Disposition
application for leave to file further affidavit rejected with costs to the respondent
Orders
- Application for leave to file further affidavit is rejected.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET Misc Civil Appli 97 of 2003
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
(CERTIORARI) PROHIBITION AND MANDAMUS BY BOOKER ONYANGO,
MESHACK OMONDI AGENG’O AND JOHN KWAMBAI ROTICH
IN THE MATTER OF THE DECISION OF ELDORET WATER AND SANITATION
COMPANY LIMITED TERMINATING THE SERVICES OF BOOKER ONYANGO,
MESHACK OMONDI AGENG’O AND JOHN KWAMBAI ROTICH
REPUBLIC…………………...........................…………………………APPLICANT
=VERUS=
ELDORET WATER & SANITATIONCOMPANY LIMITED……RESPONDENT
EXPARTE : BOOKER ONYANGO
MESHACK OMONDI AGENG’O
JOHN KWAMBAI ROTICH
RULING
The Applicant ‘s have applied for leave to file a further affidavit in support of the Application under the provisions of Order 53, of the Civil Procedure Rules, Rule 4 (2).
Counsel for the Applicant submitted that they wish to introduce evidence to show that the Minister of Local Government never consented to transfer of the Eldoret Council’s employees to the Respondent.
The Application is opposed. Order 53, Rule 4 (2), inter alia, provides that:-
“ The High Court may on the hearing of the motion allow the said statements to be amended, and may allow further affidavits to be used if they deal with new matters arising out of the affidavits of any other party to the application …………………….. ”
The Applicant does not state how the question or issue of the lack of Consent of the Minister arose from the affidavit of the Respondent for the first time. I have carefully looked at Notice of Motion and the Statutory Statement. The application is, inter alia, grounded on the allegation that the Minister did not accede to the formation of the Respondent Company and / or transfer of Staff to the Company. Paragraph 21 of the Statutory Statement states:-
“ (2) That to date the Minister of Local Government has not acceded to the formation of the Company and / or the transfer of Staff to the Company but the Municipal Council of Eldoret has gone ahead and formed the Company and transferred Civil Servants to the “Limited Liability Company.”
In view of the foregoing, I do hereby hold that the aforesaid issue is not a new issue and in any event does not arise from the Respondent’s affidavit.
Application for leave is rejected with costs to the Respondent.
DATED & DELIVERED AT ELDORET ON THIS 18TH DAY OF DECEMBER 2007
M.K. IBRAHIM,
JUDGE.