Dari Limited & 5 Others V East African Development Bank (Petition E012 Of 2023)  KESC 94 (KLR) (7 November 2023) (Ruling)
|Petition E012 of 2023
|07 Nov 2023
Mohammed Khadhar Ibrahim, William Ouko, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu
Supreme Court of Kenya
Dari Limited & 5 others v East African Development Bank
Dari Limited & 5 others v East African Development Bank (Petition E012 of 2023)  KESC 94 (KLR) (7 November 2023) (Ruling)
It is not upon petitioners to dictate the manner in which respondents should file their response
The application sought for among other orders; the striking out of the respondents replying affidavit sworn by Justa Kiragu and dated May 12, 2023; in the alternative, the court to grant leave to the petitioner to adduce additional evidence in terms of the affidavits of the 2nd applicant, Edward Okundi and Amos Aketch dated October 26, 2023 (the affidavits); in further alternative, the court to grant the petitioners the opportunity to file a rejoinder to the respondents response. The 2nd applicant contended that in response to the petition of appeal filed therein, the respondent filed a replying affidavit sworn by Justa Kiragu on May 12, 2023 which did not respond to the petition of appeal but instead, relying on the documents in the record of appeal proceeded to give a slanted narrative of the history of the engagements between the parties.
In the alternative, if the court was not minded to strike out the response, then to affirm the constitutional right to fair hearing, leave should be granted to the petitioners to adduce additional evidence, in terms of the affidavits. It was further argued that it was prejudicial to the petitioners to proceed to the hearing of the petition of appeal without the additional evidence contained in the affidavits.
- Whether there was a specific form or content of a response to a petition filed at the Supreme Court.
- What was the effect of failure by a petitioner at the Supreme Court to file and serve a rejoinder within seven days of being served with the response?
Relevant provisions of the law
Rule 42 - Response to petition of appeal
- Unless otherwise directed by the Court, a respondent shall file grounds of objection, an affidavit, or both, within fourteen days of service of the petition.
- By the ruling made on October 6, 2023, the court struck out the supplementary affidavits by the petitioners for want of procedure. The court observed that the applicants did not invoke rule 26 of the Supreme Court Rules in seeking to adduce additional evidence despite acknowledging that the supplementary affidavits sought to rebut averments made by the respondent. In filing the instant application, the petitioners sought to re-introduce the contents of the affidavits that were otherwise struck out. That was akin to ingeniously seeking to discreetly review the courts ruling. The parties appeared to be rehashing their arguments made in the application leading to the ruling.
- Rule 42 of the Supreme Court Rules provided for response to petition of appeal. The tenor of rule 42 was that the respondent was at liberty to choose whether to file grounds of objection and/or affidavit. In that instance, the respondent opted to file the affidavit sworn by Justa Kiragu. Rule 42 did not specify the form or content of the response to petition. The petitioners having filed their petition and record of appeal, it was not upon them to dictate the manner in which a respondent should file its response. The petitioners were at liberty to attack the contents of the response during the hearing of the petition, within the petition itself and not through an application such as the one before the court. The prayer to strike out the replying affidavit was premature and unmerited.
- Taking the application in its context, the petitioners had not explained or justified their failure to adhere to the provisions of rule 26 of the Supreme Court Rules at the first instance. Their attempt to seek leave to adduce additional evidence reeked of a belated afterthought with the objective of filling up gaps in its case. The courts ruling triggered the reaction by the petitioners. With that finding, it was not necessary to interrogate the nature and threshold of the evidence sought to be adduced as the applicants were litigating/pleading in installments. In the same vein, the prayer to deem the affidavits as duly filed was rendered superfluous.
- On the further alternative prayer for opportunity to file a rejoinder to the respondents response, rule 42(2) of the Supreme Court Rules mandated the petitioner to file and serve a rejoinder within seven days of being served with the response. The Deputy Registrar issued directions on the filing of rejoinder which directions the petitioners did not heed. The petitioners had neither sought to extend time within which to file the rejoinder nor explained the reasons for non-compliance.
- The court was not persuaded that the supplementary affidavits struck out in the courts ruling of October 6, 2023 were intended to be the rejoinder. Those affidavits were filed specifically in response to the replying affidavit in respect of the application for conservatory orders and to strike out supplementary affidavits. At no point was the court dealing with the substantive petition. The prayer to file a rejoinder was disallowed. It was prudent that the matter proceeded to hearing during which the parties shall advance their respective cases for determination by the court.