[2024] KEHC 2090 (KLR)

Source-derived case information.

Citation: [2024] KEHC 2090 (KLR)
Parties: Applicant: Taireni Association of Mijikenda; Respondent: Hon. Cabinet Secretary Ministry of Finance and National Treasury; Respondent: Hon Cabinet Secretary Ministry of Transport, Infrastructure, Housing Urban Development and Public Works; Respondent: The Hon Attorney General; Respondent: Kenya Ports Authority
Court: High Court
Court Station: High Court at Mombasa
Jurisdiction: Kenya
Case Number: Petition 2 of 2023
Procedural Posture: Constitutional Petition / Interlocutory Application Ruling
Outcome: Application to expunge the 4th Respondent's Replying Affidavit dismissed; leave granted to Petitioner to file Supplementary Affidavit; no order as to costs.
Judges: OA Sewe, G Mutai, F Wangari
Legal Topics: Public Interest Litigation, Affidavit Filing Timelines, Procedural Technicalities, Supplementary Affidavit, Access to Justice
Source Language: en

Constitutional Law Civil Procedure Public Interest Litigation Affidavit Filing Timelines Procedural Technicalities Supplementary Affidavit Access to Justice

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Summary, issues, holding and outcome

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Parties

Taireni Association of Mijikenda

Applicant

Hon. Cabinet Secretary Ministry of Finance and National Treasury

Respondent

Hon Cabinet Secretary Ministry of Transport, Infrastructure, Housing Urban Development and Public Works

Respondent

The Hon Attorney General

Respondent

Kenya Ports Authority

Respondent

Procedural Posture

Constitutional Petition / Interlocutory Application Ruling

Legal Issues

1 Whether the 4th Respondent's Replying Affidavit should be expunged for being filed out of time and without leave.
2 Whether the Petitioner should be granted leave to file a Supplementary Affidavit in response.
3 Whether the public interest outweighs procedural technicalities in the circumstances.

Ratio Decidendi

The court held that although the 4th Respondent filed its Replying Affidavit outside the prescribed timeline, the nature of the matter and the significant public interest involved justified the affidavit's admission. The court emphasized that Article 159(2)(d) of the Constitution requires justice to be administered without undue regard to procedural technicalities. Therefore, expunging the affidavit would not serve the interests of justice or the public. To balance fairness, the Petitioner was granted leave to file a Supplementary Affidavit within 7 days. No order as to costs was made, considering the public interest dimension of the dispute.

Court Disposition

Application to expunge the 4th Respondent's Replying Affidavit dismissed; leave granted to Petitioner to file Supplementary Affidavit; no order as to costs.

Orders

The 4th Respondent's Replying Affidavit is admitted despite being filed out of time.
The Petitioner is granted leave to file a Supplementary Affidavit within 7 days.

Full Case Text

Judgment text and source record

30 paragraphs

Taireni Association of Mijikenda v Hon. Cabinet Secretary Ministry of Finance and National Treasury & 3 others (Petition 2 of 2023) [2024] KEHC 2090 (KLR) (4 March 2024) (Ruling)

Neutral citation: [2024] KEHC 2090 (KLR)

Republic of Kenya

In the High Court at Mombasa

Petition 2 of 2023

OA Sewe, G Mutai & F Wangari, JJ

March 4, 2024

IN THE MATTER OF: ARTICLES 1, 2, 3, 6, 10, 19, 20, 21, 22, 43, 73, 74, 94, 95, 96, 109, 129, 130, 159, 152, 153, 201, 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010 IN THE MATTER OF: PUBLIC FINANCE ACT, LAWS OF KENYA IN THE MATTER OF: KENYA PORTS AUTHORITY ACT, CAP 391, LAWS OF KENYA IN THE MATTER OF: PUBLIC PRIVATE PARTNERSHIP ACT, LAWS OF KENYA IN THE MATTER OF: MERCHANT SHIPPING ACT, LAWS OF KENYA, AND IN THE MATTER OF: PUBLIC PROCUREMENT AND ASSETS DISPOSAL ACT

Between

Taireni Association of Mijikenda

Petitioner

and

Hon. Cabinet Secretary Ministry of Finance and National Treasury

1st Respondent

Hon Cabinet Sectretary Ministry of Transport, Infrastructure, Housing Urban Development and Public Works

2nd Respondent

The Hon Attorney General

3rd Respondent

Kenya Ports Authority

4th Respondent

Ruling

1. We have considered the oral application of Ms. Gichuhi, learned counsel for the Petitioner and the responses by Ms. Lang’at for the 1st, 2nd and 3rd Respondents and Mr. Hassan for the 4th Respondent.

2. The Petitioner seeks to have the Replying Affidavit sworn on 19th February 2024 and said to have been served on 26th February 2024 expunged on the grounds that it was filed without leave and outside the timelines given by the court. Counsel submits that it would be prejudicial to the Petitioner’s case if the same is admitted.

3. In the alternative counsel sought leave to file a Supplementary Affidavit in response to the 4th Respondent’s Replying Affidavit, within 14 days. She prayed that the 4th Respondent be condemned to pay the Petitioner’s costs.

4. Ms. Lang’at, learned counsel for the 1st, 2nd and 3rd Respondents opposed the application. She urged the court to consider the public interest and submitted that as the petition revolves around the operation of the 4th Respondent expunging the impugned affidavit would be prejudicial to the public interest.

5. Mr. Hassan for the 4th Respondent also opposed the application. He argued that allowing the application would amount to condemning the 4th Respondent unheard. He further argued that the impugned affidavit responds to the issues in dispute in this matter. Counsel urged that what the Petitioner was actually seeking was an adjournment of the matter. In his view the Petitioner would not be prejudiced if the affidavit is admitted.

6. We have considered the application. In our opinion the 4th Respondent did not require leave to file a Replying Affidavit given the directions we issued on 12th February 2024. The 4th Respondent should however have filed the said response within 7 days. We have perused the e-filing portal and established that the said document was filed on 26th February 2024 which date was outside the timeline given by the court. Given the nature of the matter and the public interest in it, we agree that it would not be in the public interest to expunge the impugned Replying Affidavit. Article 159(2)(d) of the Constitution calls on this court to administer justice without undue regard to procedural technicalities.

7. In the interest of justice the Petitioner shall have leave to file a Supplementary Affidavit within 7 days.

8. Given the nature of the matter we make no orders as to costs.Orders accordingly.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT MOMBASA THIS 4TH DAY OF MARCH 2024OLGA SEWEJUDGEGREGORY MUTAIJUDGEF. WANGARIJUDGE

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