Newsletter on 22/03/2013

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Tuesday 2nd April

Issue 13/2013

CASE OF THE WEEK

 

Substance and Time Constraints in Filing Further Evidence in a Presidential Election Petition

Raila Odinga & 5 Others v Independent Electoral Boundaries Commission & 3 Others
Supreme Court of Kenya at Nairobi
Petition No. 5, 3 & 4 of 2013
W. M. Mutunga, CJ and P. K. Tunoi, M. K. Ibrahim, J. B. Ojwang, S.C. Wanjala & N. S. Njoki SCJJ.
March 26, 2013
Reported by Emma Kinya Mwobobia

The petitioner had filed a petition to which the respondents in the matter responded to by filing their respective replying affidavits. Subsequently, the petitioner filed what he referred to as the ‘petitioner’s affidavit in reply’ and served the respondents with the exception of a few who complained of lack of service. Several parties in the petition took issue with the filing of the subsequent affidavit and raised objections to it while others had no objections and even supported the reasons for filing of the further affidavit by the petitioner.

Issues

i. Whether the affidavit in reply that the petitioner had filed was admissible in court in a presidential election petition which had strict time constraints

ii. Whether the nature, context and extent of the new evidence in the affidavit that was intended to be produced by the petitioner in the presidential election petition could have been prejudicial to the respondents and therefore amounted to a miscarriage of justice. 

iii. Whether the electoral laws had provided for a procedure for filing further affidavits or additional evidence which could have been available to the petitioner.

Election Law – presidential election petition - procedure for filing of documents in a presidential election petition - affidavit - affidavit evidence – time prescribed for determination of a presidential election petition – where the petitioner had filed a further affidavit after the respondents had filed their replying affidavits - limitation of time due to the strict time lines in determination of presidential election petitions  – admissibility of a further affidavit or additional evidence in a presidential election petition filed without leave of court – context, nature and extent of the affidavit - where the affidavit was lengthy and introduced new issues  - whether such an affidavit would be admissible in the circumstances – whether the further affidavit in an presidential election petition  would have been prejudicial to the respondents and therefore have occasioned a miscarriage of justice - Supreme Court Act section 31 (d), Supreme Court (Presidential Election Petition) Rules, 2013 Rule 9

1. The petitioner had used an unusual way of availing affidavits as annexures or evidence as there were various further affidavits filed through the affidavit in reply which were not independent affidavits filed to stand on their own as evidence in the particular proceedings. Such affidavits evaded payment of the filing fees and their probative value was questionable.  

2. The operative term in Section 31 (d) of the Supreme Court Act was the word “shall” which meant that it would be mandatory to comply with any requirement within the prescribed time. The Supreme Court Act had provided for the manner in which the petition challenging the election of the President-Elect would be filed and prosecuted.

3. The Supreme Court Act had no provision relating to any further response. The principal pleadings in a Presidential Election under the Act were the petition and the response (just like a Plaint and Defence were the main pleadings in civil litigation or action). The next stage after pleadings had closed in a presidential election petition was the Pre–trial Conference which under Rule 9 (1) of the Supreme Court (Presidential Election Petition) Rules, 2013 would be held 9 days after the filing of the Petition.

4. Court found that It was not mandatory for the petitioner to annex an affidavit to the Petition. However, a respondent was required to annex a replying affidavit to the response.

5. At the Pre–trial Conference, the Supreme Court, under the provisions of Rule 10 (f) of the Supreme Court (Presidential Election Petition) Rules, could give directions in regard to the filing and service of any further affidavits or the giving of additional evidence.

6. The Supreme Court could only have exercised its powers or discretion to allow further affidavits or additional evidence if it was specifically applied for, and may have allowed or declined such an application. It was therefore not a matter of right and there was no provision for further affidavits in the Supreme Court Act.

7. The Supreme Court considered each case within the context of its peculiar circumstances and therefore, the exercise of the discretion of the court to apply the principle of substantial justice, rather than technicalities particularly in a petition relating to presidential election which was a matter of great national and public interest ought to have been made sparingly. The law and rules relating to the Constitution and implemented by the Supreme Court must be taken with seriousness and the appropriate solemnity. The rules and time – lines established were made with special and unique considerations.

8. The period for the filing, prosecution and determination of a Presidential Election was only 14 days from the time of filing the petition which was a very tight, short and limited period. The background to the setting of the strict time lines ought to be known to most Kenyans as there was a purpose for it and the intention of the People of Kenya and of Parliament ought to be respected.

9. The parties in the petition had a duty to ensure that they complied with their respective time lines, and the court ought to adhere to its own. There must have been a fair and level playing field so that no party or the court lost the time that they were entitled to and no extra burden should have been imposed on any party or the court as a result of omissions, or inadvertences which were foreseeable or could have been avoided.

10. If the further affidavit was small or limited so that the other party was able to respond to it, then the court could have been considerate, taking into account all aspects of the matter. However, where the new material introduced was so substantial involving not only a further affidavit but massive additional evidence so as to make it difficult or impossible for the other party to respond effectively, the court would exercise caution and care in the exercise of its discretion to grant leave for the filing of the further affidavit and admission of additional evidence. 

11. The affidavit contained 839 pages all inclusive and the further statements, in particular the intended additional evidence (exhibits), were so detailed that the remaining time before the trial was not reasonably adequate for the respondents to file any reasonable answer.

12. The additional facts and evidence tend to introduce new matters that would change the character and nature of the petition which may have led to amendment of the petition and possibly given rise to significant new facts and allegations leading to a serious departure from the original case.

13. If the court had allowed the affidavits to remain on record, it would have been prejudicial to the respondents and would have amounted to a miscarriage of justice.

14. Rule 31 (h) Supreme Court (Presidential Election Petition) Rules permitted the petitioner to apply for leave to be allowed to file further affidavits and additional evidence at the Pre-trial Conference. It would therefore have been prudent to file such an application before the date of the Pre–trial Conference so that it was before court, in time.   However, in this case, the petitioner proceeded to file an affidavit in reply which had six additional and substantial affidavits, without any application for leave to do so.

15. The court noted that the request for leave had been made at the end of the petitioner’s submissions in response to the objection and appeared to be almost reluctantly made.  It was probably due to the pressure emanating from the kind of petition that was before the court and the time constraints. However, the court could not shoulder the burden of the consequences of such omissions and inadvertencies.

Affidavit in reply by the petitioner, annexures and all other accompanying affidavits expunged from the court records.

 

 

SELECTED NOTICES FROM THE KENYA GAZETTE

 

Vol. CXV – No. 55  Kenya Gazette Dated March 28, 2013

Contents
The National Library Service Board Act - Appointment.
The Water Act - Appointment..
The Community Service Orders Act - Appointment.
The Civil Procedure Act - Establishment.
The Mohammedan Marriage and Divorce Act - Appointment.
The Central Bank of Kenya Act - Revocation of Forex Bureau Licence.
The Registration of Titles Act - Issue of Provisional Certificates.
The Registered Land Act - Issue of New Land Title Deeds.
Liquor Licensing.
Customs Services Department - Goods to be Sold at Customs Warehouses.
The Physical Planners Registration Act - Registered Physical Planners.
The Veterinary Surgeons and Veterinary Paraprofessionals Act - Registered Veterinary Surgeons.
Probate and Administration.
The Bankruptcy Act - Adjudgement of Debtors.
The Labour Relations Act - Amendment of the Constitution and Rules of Union.
The Political Parties Act - Change of Officials.
The Mining Act - Application for a Special Mining Lease, etc.
The Physical Planning Act - Completion of Part Development Plans, etc.
The Environmental Management and Co-ordination Act -
Environmental Impact Assessment Study Reports.
Disposal of Uncollected Goods.
Loss of Policies.
Change of Names.
–––––––––––––––
SUPPLEMENT No. 49, 50 and 51
Legislative Supplement
LEGAL NOTICE NO.
55 - The Constitution of Kenya - First Sitting of The National Assembly.
56 - The Constitution Of Kenya - First Sitting of The Senate.
57 - The Revision of The Laws (Rectification) Order, 2013.
58 - The Lapsset Corridor Development Authority Order, 2013.

GAZETTE NOTICE NO. 3902
THE NATIONAL LIBRARY SERVICE BOARD ACT
(Cap. 225)
APPOINTMENT

IN EXERCISE of the powers conferred by paragraph 2 (2) of the Schedule to the Kenya National Library Service Board Act, the Minister of State for National Heritage and Culture appoints -

NELLY MWANZIA

to be a member of the Kenya National Library Service Board, for a period of one (1) year.

Dated the 28th February, 2013.

WILLIAM OLE NTIMAMAMA,
Minister of State for National Heritage and Culture.

GAZETTE NOTICE NO. 3903
THE WATER ACT
(No. 8 of 2002)
THE TANATHI WATER SERVICES BOARD
APPOINTMENT

IN EXERCISE of the powers conferred by section 51 of the Water Act, 2002, the Minister for Water and Irrigation, appoints -

REHANA ISMAIL

to be a member of the Board of Directors of Tanathi Water Services Board for a period of three (3) years, with effect from 15th February, 2013. The appointment of Patrice Mwangi Ivuti, as a member of the Board of Directors is revoked with effect from 15th February, 2013.

Dated 15th February, 2013.

C. K. NGILU,
Minister for Water and Irrigation.
Gazette Notice No. 2235 of 2013, is revoked.

GAZETTE NOTICE NO. 3904
THE COMMUNITY SERVICE ORDERS ACT
(No. 10 of 1998)
APPOINTMENT

IN EXERCISE of the powers conferred by section 7 (1) (a) of the Community Service Orders Act, the Chief Justice appoints –

JUSTICE FREDRIC ANDAGO OCHIENG

to be Chairman, National Community Service Orders Committee, with effect from the 1st March, 2013.

Dated the 22nd March, 2013.

WILLY MUTUNGA,
Chief Justice and President Supreme Court of Kenya.

GAZETTE NOTICE NO. 3905
THE CIVIL PROCEDURE ACT
(Cap. 21)
ESTABLISHMENT

TAKE NOTICE that the Chief Justice/President, Supreme Court of Kenya, has established Lodwar High Court Sub-registry with supervisory jurisdiction over Lodwar, Lokichar, Lokitaung and Kakuma Magistrates’s Courts, with effect from the 1st April, 2013.

Dated the 21st March, 2013.

WILLY MUTUNGA,
Chief Justice and President Supreme Court of Kenya.

GAZETTE NOTICE NO. 3906
THE MOHAMMEDAN MARIAGE AND DIVORCE
REGISTRATION ACT
(Cap. 155)
APPOINTMENT

IN EXERCISE of the powers conferred by section 4 of the Mohammedan Marriage and Divorce Registration Act, the Attorney- General appoints -

SAIDI MOHAMED AMIN

to be an Assistant Registrar of Islamic Marriages and Divorces in Nairobi District.

Dated the 22nd February, 2013.

GITHU MUIGAI,
Attorney-General.
Gazette Notice No. 3513 of 2013, revoked.

GAZETTE NOTICE NO. 3907
THE CENTRAL BANK OF KENYA ACT
(Cap. 491)
REVOCATION OF FOREX BUREAU LICENCE

IT IS notified for the general information of the public that the Central Bank of Kenya has revoked the licence of the Forex Bureau set out in the first column of the schedule hereto, with effect from the date specified in the second column of the schedule.

SCHEDULE
First Column Second Column

Goldfield Forex Bureau Kenya Limited 28th February, 2013.

Dated the 20th March, 2013.

NJUGUNA NDUNG’U,
Governor, Central Bank of Kenya.

GAZETTE NOTICE NO. 4167
THE POLITICAL PARTIES ACT
(No. 11 of 2011)
CHANGE OF PARTY OFFICIALS

IN EXERCISE of the powers conferred by section 20 (1) (C) of the Political Parties Act, 2011, the Registrar of Political Parties gives notice that Party of National Unity intends to change or amend its party officials to:

Name                                    Designation
Joseph Cherorot                National Chairman
John Okemwa Anunda    Secretary-General
Hawa Maliyuni                   National Treasurer
Stephen Karau                  Organizing Secretary

Any person with written submissions concerning the intended change(s) by the political party shall within seven (7) days deposit them with the Registrar of Political Parties. Further equiries can be made through the Registrar’s Office, P.O. Box 45371–00100, Nairobi, Anniversery Towers, University Way, 21st Floor, from 8.00 a.m. to 5.00 p.m.

Dated the 25th March, 2013.

LUCY K. NDUNGU,
Registrar of Political Parties.
MR/1771997

GAZETTE NOTICE NO. 3875
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED CONSTRUCTION OF TOWN HOUSES ON
PLOT LR. NO 12825/44 AND 12825/50 KASARINITECHNOLOGY
WARD IN KIAMBU MUNICIPALITY, KIAMBU
COUNTY
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the construction of town houses on plot L.R. No 12825/44 and 12825/50 Kasarini-technology ward in Kiambu, municipality Kiambu County.

The Proponent (MAHA Properties Limited, P.O. Box195-00900, Kiambu) of the proposed project is proposing to construct town houses on plot L.R. No 12825/44 and 12825/50 Kasarini-technology ward in Kiambu, municipality Kiambu County.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:
(a) Director-General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, NHIF Building, Community, P.O. Box 30521,Nairobi.
(c) County Director of Environment, Kiambu County.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the decision making process of the plan.

B. M. LANGWEN,
for Director-General,
MR/1777929 National Environment Management Authority.

GAZETTE NOTICE NO. 3876
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED RELOCATION OF TKL ELDORET
AVIATION RE-FUELING SERVICES DEPOT IN ELDORET,
UASIN GISHU COUNTY
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the proposed relocation of TKL Eldoret Aviation Re-fueling Services Depot in Eldoret, Uasin Gishu County.

The Proponent (Total Kenya Limited) of the proposed project is proposing to put up an aviation re-fueling services depot within Eldoret, Uasin Gishu County.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:
(a) Director-General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, NHIF Building, Community, P.O. Box 30521, Nairobi.
(c) County Director of Environment, Uasin Gishu County.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the decision making process of the plan.

B. M. LANGWEN,
for Director-General,
MR/1775963 National Environment Management Authority.

GAZETTE NOTICE NO. 3877
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED THE PROPOSED TKL KISUMU
AVIATION RE-FUELING SERVICES DEPOT
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the proposed TKL Kisumu Aviation Re-fueling Services Depot within the airside of Kisumu International Airport, Kisumu County.

The Proponent (Total Kenya Limited) of the proposed project is proposing to put up an aviation re-fueling services depot within the airside of Kisumu International Airport, Kisumu County.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:

(a) Director-General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, NHIF Building, Community, P.O. Box 30521, Nairobi.
(c) County Director of Environment, Kisumu County.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the decision making process of the plan.

B. M. LANGWEN,
for Director-General,
MR/1775963 National Environment Management Authority.

GAZETTE NOTICE NO. 3878
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED LIQUEFIED PETROLEUM GAS (LPG)
PLANT, SERVICE STATION AND AUXILIARY FACILITIESON
L.R. NO. 14966, SOUTH EAST OF MARIAKANI TOWN IN KILIFI
COUNTY
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the above proposed project.

The Proponent (Fossil Fuels Limited) intends to construct and operate on a 5.4 acre plot; a Liquefied Petroleum Gas (LPG) plant, to serve the purposes of receiving/storage of bulk LPG and filling of gas cylinders to service markets in Coast, Eastern, Rift Valley, Central and Nairobi provinces. The project will also include a service station and auxiliary facilities.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:
(a) Director-General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, NHIF Building, Community, P.O. Box 30521, Nairobi.
(c) County Director of Environment, Kilifi County.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the decision making process of the plan.

B. M. LANGWEN,
for Director-General,
MR/1771506 National Environment Management Authority.

GAZETTE NOTICE NO. 3879
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED SIMWATA FILLING STATION ON PLOT
NO. ASEMBO/RAMBA/4700 IN NDORI TRADING CENTRE,
SIAYA COUNTY
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the above proposed project.

The Proponent (Maurice Onyango Okong’o) is proposing to develop Simwata Filling Station on Plot No. ASEMBO/RAMBA/4700 in Ndori trading centre, Siaya County.

The anticipated impacts and proposed mitigation Measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:

(a) Director-General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, NHIF Building, Community, P.O. Box 30521, Nairobi.
(c) County Director of Environment, Siaya County.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the decision making process of the plan.

Z. O. OUMA,
for Director-General,
National Environment Management Authority.
MR/1771772

GAZETTE NOTICE NO. 4172
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED CONSTRUCTION OF COMMERCIAL AND
OFFICE COMPLEX (THE HUB KAREN) ON LR.NO 1159/379-384
& 1159/25 ALONG DAGORETTI ROAD AT KAREN, NAIROBI
COUNTY
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the above proposed project.

The Proponent (Azalea Holdings Ltd) intends to construct on a 20 acre plot, a Commercial Complex comprising: specialist shops; first green supermarket in Kenya, 2000 m 2 central open space (community and social space), a blend of leisure options (cinema, gym/spa, jogging track, lake with fishing activities, orchid garden and extensive green areas, amphitheatre etc.), over 1000 vehicle parking, among others.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:
(a) Director-General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, NHIF Building, Community, P.O. Box 30521, Nairobi.
(c) County Director of Environment, Nairobi County.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the decision making process of the plan.

B. M. LANGWEN,
for Director-General,
MR/1771721 National Environment Management Authority.

GAZETTE NOTICE NO. 4173
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE CANCER AND CHRONIC DISEASE CENTRE FOR
MOI TEACHING AND REFERRAL HOSPITAL IN ELDORET
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the above proposed project.

The Proponent (Moi Teaching and Referral Hospital) intends to construct a modern Cancer Disease Centre in Eldoret.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:
(a) Director-General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, NHIF Building, Community, P.O. Box 30521, Nairobi.
(c) County Director of Environment, Uasin Gishu County.
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the decision making process of the plan.

B. M. LANGWEN,
for Director-General,
MR/1771724 National Environment Management Authority.

National Council for Law Reporting
Milimani Commercial Courts Building,
Ground Floor
P.O Box 10443 - 00100, Nairobi Kenya.
Tel: (254 020) 2712767, 2719231
Fax: (254 020) 2712694