Automated Summary
Key Facts
This case involves an application under Order 49 Rule 5 of the Civil Procedure Rules to extend the time for filing an affidavit by an interested party. The party filed 2 days late, citing delays from the Registry in supplying proceedings for scrutiny. The applicant (Philips Medical Systems) opposed the extension, arguing it was due to the party's laxity and would retroactively legitimize an out-of-time affidavit. The judge ruled that the 2-day delay was not inordinate and no grave prejudice was caused, allowing the affidavit to be admitted as timely. The court also noted Kenya's procedural flexibility in judicial review cases, where respondents are not strictly required to file affidavits but may oppose through counsel or viva voce. The extension was granted to prevent multifarious applications from delaying the case, with costs to be determined in the cause.
Issues
- The procedural requirements for affidavits in judicial review applications under Order 49 Rule 53, particularly whether respondents are obligated to file affidavits in opposition to such applications.
- Whether the court should admit a late-filed affidavit under Order 49 Rule 5 of the Civil Procedure Rules, considering the delay of 2 days and the lack of grave prejudice to parties.
Holdings
- The court held that in judicial review applications, respondents are not compelled to file affidavits unless demanded by the parties. The use of affidavits is not rigidly required, allowing relevant parties to be heard without them.
- The court allowed the application to extend the time for filing an affidavit, admitting the already filed affidavit as if it were submitted on time. The delay of 2 days was deemed not inordinate, and no grave prejudice was found.
Remedies
- Costs be in the cause
- Affidavit admitted by ordering that it is filed in time
- Application allowed
Legal Principles
The court ruled on the admissibility of an affidavit filed two days late, emphasizing that procedural requirements for judicial review in Kenya are less rigid than in England. It highlighted the court's discretion to extend time for filing affidavits under Order 49 Rule 5, noting that such extensions can be granted retrospectively if the delay is not inordinate and no significant prejudice is caused. The judge also addressed the lack of strict compulsion for respondents to file affidavits in judicial review cases, allowing for alternative forms of opposition (e.g., viva voce).
Cited Statute
Civil Procedure Rules
Judge Name
A. I. Hayanga
Passage Text
- I am satisfied that the delay of 2 days was not inordinate and there is no grave prejudice occasioned by it to the parties although I agree with Mr. Lubulela that although not quantifiable there can also be perceived prejudice in any omission to comply with a court order even if only that it denies one to realize an expectation.
- I allow the application and extend the time by admitting the already filed affidavit by ordering that it is filed in time. Costs be in the cause.
- It appears to me that the question of affidavits in Judicial Review application should not be rigidly applied because it would exclude otherwise relevant parties.