[2016] KEHC 8344 (KLR)
The court held that it has the discretion to admit affidavits filed without prior leave, provided that the right to a fair hearing is not prejudiced. In this case, the supplementary affidavit of the 3rd respondent addressed new issues raised by the petitioner and did not unduly prejudice the petitioner, as there was...
Source-derived case information.
- Citation
- [2016] KEHC 8344 (KLR)
- Parties
- Petitioner: Roshanara Ebrahim; Respondent: Ashleys Kenya Limited; Respondent: Terry Mungai; Respondent: Frank Zahiten; Respondent: Evelyne Njambi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 361 of 2016
- Procedural Posture
- Constitutional Petition / Ruling on Application to Expunge Supplementary Affidavit
- Outcome
- Application to expunge supplementary affidavit dismissed; leave granted to admit the supplementary affidavit.
- Judges
- EM Muriithi
- Legal Topics
- Admission of Affidavit, Supplementary Affidavit, Fair Hearing, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Roshanara Ebrahim
Petitioner
Ashleys Kenya Limited
Respondent
Terry Mungai
Respondent
Frank Zahiten
Respondent
Evelyne Njambi
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application to Expunge Supplementary Affidavit
Legal Issues
- 1 Whether the supplementary affidavit filed by the 3rd respondent without leave should be expunged from the record.
- 2 Whether the petitioner is prejudiced by the late filing of the supplementary affidavit.
- 3 Whether the court can grant leave to admit an affidavit filed without prior leave.
Ratio Decidendi
The court held that it has the discretion to admit affidavits filed without prior leave, provided that the right to a fair hearing is not prejudiced. In this case, the supplementary affidavit of the 3rd respondent addressed new issues raised by the petitioner and did not unduly prejudice the petitioner, as there was sufficient time to respond before the hearing. The court distinguished this situation from cases where late evidence would compromise the fairness of proceedings at an advanced stage. The court further emphasized that all relevant evidence should be considered, especially where allegations of criminality are involved, and that objections to the substance of the evidence should...
Court Disposition
Application to expunge supplementary affidavit dismissed; leave granted to admit the supplementary affidavit.
Orders
- Leave is granted for the filing of the Supplementary Affidavit sworn on 9th November 2016.
- The petitioner is directed to file a response to the supplementary affidavit, if necessary, before the hearing of the Petition on 16th November 2016.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO 361 OF 2016
BETWEEN
ROSHANARA EBRAHIM…...….………………………...PETITIONER
VERSUS
ASHLEYS KENYA LIMITED …….…...……..….…1ST RESPONDENT
TERRY MUNGAI……….….………………....……2ND RESPONDENT
FRANK ZAHITEN …………………..................….3RD RESPODNENT
EVELYNE NJAMBI…….……………................…4TH RESPONDENT
RULING
The issue
1. This is a ruling on an application to expunge the supplementary affidavit of the 3rd respondent filed on 10th November 2016 without leave of court. Counsel for the petitioner objects that no leave of court was obtained before the filing and that the petitioner did not have opportunity to respond to the affidavit and to make submissions thereon in her submissions filed before the Court.
2. Counsel for the 3rd respondent contended that the 3rd respondent’s impugned Supplementary Affidavit was made necessary by the petitioner’s Supplementary affidavit of 28th October 2016 which raised a new issue that the photographs in the replying affidavits of the 1st and 2nd Respondent were disputed as to the time when they were taken and that the Supplementary Affidavit of the 3rd Respondent merely elaborated on the photos and alleged use of narcotics by the petitioner.
3. Counsel for the 2nd , 3rd and 4th Respondents did not object to the admission of the affidavit and urged that it was in the public interest that all evidence bearing on the case be presented and the petitioner may be allowed time to respond to the affidavit.
Determination
4. There is no doubt that the Court has power to grant leave to file affidavit on any matter in dispute before it. See Order 19 Rule (1) of the Civil Procedure Rules and Rule 20 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013.
5. Although leave should ideally be sought and obtained before the filing of the affidavit, there is no bar for the Court to grant such leave even after the filing of such affidavit. The Court should only be concerned that parties are granted a fair hearing within the meaning of Article 50 of the Constitution.
6. In this case, it is clear that an issue arises as at when the photographs were taken, the Petitioner stating at paragraph 12 of the Supplementary Affidavit of 28th October 2016 that
“That the photos forwarded to the 1st and 2nd Respondents by the 3rd Respondent were photos taken way back in mid-2015, with some dating back to three years before I was crowned Miss World Kenya, 2016. ”
Evidence corroborating, contradicting or elaborating such deposition is relevant to the determination of the matter, and the Court may properly receive it.
7. Moreover, the element of alleged criminality of the petitioner’s conduct in the alleged use of narcotics is a serious enough matter to warrant the receipt of the affidavit. A court of law may not ignore allegations of criminality or illegality made against a party to proceedings before it. It behoves the Court to investigate the issue by evidence presented to it and make a determination as appropriate.
8. The petitioner’s right to fair hearing is capable of protection, and she is not unduly prejudiced by receipt of the 3rd Respondent’s supplementary affidavit because in this case there is time for a response thereto before the hearing of the Petition. In addition, submissions thereon may be made at the hearing orally and in writing in advance thereof. This case is distinguishable from the situation where the proceedings are at advance stage of hearing with no opportunity to uphold the other party’s right to fair hearing as in Raila Odinga v IEBC & Ors., Supreme Court Election Petition No. 6 of 2013 and Zakariah Okoth Obado v. Edward Akong’o Opiyo & 2 Ors., Supreme Court Election Petition No. 4 of 2014, where it has been held that “at this advance stage in the proceedings, it is not in the interest of justice to allow for new affidavit evidence to be filed.”
9. The Petitioner’s objection as to the cogency of the evidence in relation to the interpretation of the photographs and contents of the affidavit is a matter for determination at the trial when the Court considers whether the facts in issue have been proved or disproved, as necessary. See section 3 (2) (3) and (4) of the Evidence Act.
Order
10. For reasons set out above, the Court admits and grants leave for the filing of the Supplementary Affidavit sworn on 9th November 2016 and directs that the petitioner do file a response thereto, if necessary, before the hearing of the Petition on the 16th November 2016 as scheduled.
11. Submissions thereon may be the subject of the supplementary written and oral argument to be made at the hearing.
DATED AND DELIVERED THIS 14TH DAY OF NOVEMBER 2016.
EDWARD M. MURIITHI
JUDGE
APPEARANCES:
M/S MMA Advocates for the Petitioners.
M/S Omwancha Mukiri & Onyango Advocates for the 1st, 2nd and 4th Respondents.
M/S Apollo & Co. Advocates for the 3rd Respondent.