Automated Summary
Key Facts
The case involves Philips Medical Systems and another applicant seeking an order to extend the time for filing an affidavit under Order 49 Rule 5 of the Civil Procedure Rules. The interested party filed the affidavit two days late, citing delays by the Registry in supplying proceedings. The applicant opposed the extension, arguing it was due to laxity, while the judge ruled that the delay was not inordinate and allowed the affidavit to be admitted as timely. The ruling emphasizes flexibility in judicial review applications regarding affidavits and procedural compliance.
Issues
- Affidavit requirements under Order 49 Rule 53 of the Civil Procedure Rules in a Judicial Review application
- Admission of a late affidavit under Order 49 Rule 5 of the Civil Procedure Rules
Holdings
- The court ruled that in Kenya, respondents in judicial review applications are not strictly compelled to use affidavits but it is expected practice when presenting factual defenses. The judge highlighted the need for flexibility to avoid excluding relevant parties, distinguishing Kenya's approach from England's rigid procedural requirements.
- The court allowed the application to extend the time for filing an affidavit, admitting the already filed affidavit as filed in time. The judge determined that the 2-day delay was not inordinate and no grave prejudice was occasioned to the parties, emphasizing that barring the affidavit would lead to multifarious applications and case delays.
Remedies
- Costs are to be in the cause.
- The application is allowed and the time for filing the affidavit is extended. The court admits the already filed affidavit and orders that it is filed in time.
Legal Principles
The court ruled that procedural requirements for affidavits in judicial review applications should not be strictly applied if they exclude otherwise relevant parties. It allowed a 2-day late affidavit filing, emphasizing the court's discretion to admit evidence under Order 49 Rule 5 when there is no inordinate delay or grave prejudice.
Cited Statute
Civil Procedure Rules
Judge Name
A. I. HAYANGA
Passage Text
- I think to bar this affidavit is to pave way for multifarious applications which may delay the conclusion of the case.
- I allow the application and extend the time by admitting the already filed affidavit by ordering that it is filed in time.
- The only requirement under our Order 53 Rule (4) (3) is that:- 'Every party to the proceedings shall supply to any other party, on demand, copies of affidavits which he proposes to use at the hearing'.