Assests Recovery Agency VS SWALEH YUSUF AHMED AND ASMA ABDALLA MOHAMED AND 2 Others

</><><>></><><>></><><>></><><>></><><>></><><>></><><>>> ></><><>>> ></><><>>> ></><><>></><><>>>) ><>><>><>><>><>>> ><>>> ><>>> >> ><>><>><>>> >> >> ><>><>>> >> ><>>> >> ><>></><><>></><><>><>>< href id="footnote-ref-1">[1] is from High Court to the lower court and vice versa as well as between the subordinate courts.  The Act generally does not anticipate transfer from one High Court Registry to another.  The logic and rational is that there is only one High Court operating in different registries. 

MR magolo:

“No objection although I would have expected them to withdraw the application. We are also seeking time to file a replying affidavit as our client, the 3^rd respondent is out of the country and getting the statement from a foreign bank has proven difficult.”

1. From the summary of the proceedings, there remain no doubt that Mr. Magolo has been on record for all the Respondents since inception.  That being the position, if the 3^rd respondent was to be intent on getting another advocate on record, the proper document to file ought to have been a Notice of Change of Advocates^[2]. The Notice of Appointment filed when subjected to the strict interpretation of the Civil Procedure Rules would turn out as improper and unacceptable. 
2. On that strict application of the law, the Notice of appointment filed by Ms Bryant Law Advocates, would be of no consequence for having been effected contrary to Rules.  If the court was to be technical, it would be sufficient at this juncture to find that Ms Bryant was not properly on record with the consequence that the pleading filed by the firm were improperly filed and deserve being struck out.  The court is however not anxious to proceed that way but to do substantive justice to the matter by giving it a merit-based determination.
3. On the merits, the court poses to itself the question; why did the judiciary establish the Anti-corruption Economic Crimes Division of the High Court and give it a Principal Registry in Nairobi.
4. To this court, corruption and the fight against the vice, is a central issue the Kenyan people thought important enough to be addressed by a whole chapter 6 of the constitution.  The Kenyan people view the cancer of corruption to take the repute of a national tragedy that need combat by precision and matters handled in a decisive, expeditious and laser focused manner.  The corruption relented disputes are to be given special and specific attention hence the law that in the magistracy, it requires a special designation to sit and handle corruption and Ethics related case and within determinate timeframes.
5. That was, to my understanding, the thought behind the establishment of the high court division.  The collective fight against corruption demanded, and continues to demand, that a dedicated division be created away from the usual disputes to enable that division have the desired focus so that timely and expeditious closures are achieved. The rational was and remains that if the corruption related cases were to be heard and dealt with in the usual manner, like any other dispute, where a judicial officer or judge has every manner of dispute on the daily cause list, the focus and timelines expected would be lost sight of.
6. The next question the court views important is whether centralisation of the registry in Nairobi negates on the constitutional values on access to justice and need to take judicial services closure to the people.
7. It is understandable that access to justice, which entail costs and distance proximity court services are cardinal values in the constitution. when the Civil Procedure Act was enacted in the year 1924, the only known infrastructure for access court and justice provision was the physical court rooms.  That was the purpose to be served by sections 12, 13, 14 and 15 of the Act. Indeed, no law can remain static but the law must align with other development in society.  Today, access to court is not limited to personal and physical ability to reach a court house.  Courtesy of the technology, Kenyans living within an outside jurisdiction and any other person seeking judicial services, can access court at the convenience, pleasure and leisure of their sitting room, bedroom and even washroom.  With such developments, the restriction on how to file and handle court disputes have been largely transformed.  It is now possible for any person to have his matter filed, managed and heard to conclusion, without him being personally present in the court house and even within the boundaries of Kenya. 
8. When the parties addressed me in this matter, Mr. Bryant readily acknowledged that we have made great strides and that it was possible to deal with a matter without the need to attend a physical court session save that he intimated that in this case there may be need for cross-examination of witness. No particulars of such witnesses were disclosed
9. That position was new, not taken in the Application and made from the bar.  It strikes the court that as of today directions had been given, with the respondents’ participation by counsel, that the matter be heard by way of submissions. Pursuant to such directions, Mr. Magolo has filed written submissions for the2nd and 4^th respondents only. Throughout all attendance before the court no hint was ever made that any deponent of any affidavit would be required for examination. The need for cross examination of undisclosed witness cannot be the basis to order transfer.
10. The court views the change of heart to demonstrate the intention to delay the just, expeditious and proportionate conclusion of the matter.  That ought not be allowed but discouraged.
11. In any event, Mr. Bryant has innumerable times said that his client does not live in Kenya but in Dubai.  The question one must ponder over is whether Mombasa is nearer to Dubai than Nairobi!
12. It is the finding by the court that the Practice Directions for The Anti-Corruption and Economic Crimes Division of The High Court, do not negate on the right to access to efficient, expedient, proportionate and affordable justice. To the contrary, it promotes all the values and attributes of access to justice with additional convenience and flexibility.
13. The court view the application made pursuant to article 159 not to further the values that provision enshrines but to counter same.  Such must be discouraged.  That is best achieved by dismissing the application so that the matter proceeds to its logical conclusion and closure. With the focus to progress the matter, the court deems Mr Bryant properly on record for the 3^rd respondent. In that capacity, he shall file and serve any desired Replying Affidavits as well as submissions within 7 days from today.
14. So that no more undue time is taken or procedural directions, the applicant has the leave, upon being served, to file any supplementary Affidavits and submissions if need shall arise. That shall be done within 7 days after service by Mr Bryant.
15. Thereafter, the respondents will have the liberty to file any further affidavits and submissions within 7 days after service by Mr Ogonda
16. The costs of the dismissed application are awarded to the Agency.

1. Head notes of Section 18 provides; Power of High Court to withdraw and transfer case instituted in subordinate court;     ↑

2. Order 9 Rule 5,  ↑