REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E.131 OF 2022
REPUBLIC…………………...…………………........................ APPLICANT
VERSUS
NAIROBI METROPOLITAN
SERVICES (NMS)..……………………………………... 1 ST RESPONDENT
THE DIRECTOR ROADS, PUBLIC WORKS
& TRANSPORT, NMS…………………………………...2 ND RESPONDENT
THE DIRECTOR OF ENFORCEMENT, NMS……….3 RD RESPONDENT
THE INSPECTOR GENERAL OF POLICE…………..4 TH RESPONDENT
THE DTO CENTRAL POLICE STATION…………... 5 TH RESPONDENT
THE HON. ATTORNEY GENERAL…………………..6 TH RESPONDENT
AND
METRO TRANS E. A LTD…………………………INTERESTED PARTY
AND
KAKA TRAVELLERS CO-OPERATIVE SAVINGS
AND CREDIT SOCIETY LTD………..…………EX-PARTE APPLICANT
AND
ROSANA OSCAR OMURWA……………….CONTEMNOR/APPLICANT
RULING ON ADMISSIBILITY OF AFFIDAVIT FILED LATE
Introduction
1. This matter has a chequered history. It was filed in 2022 and to date, the substantive notice of motion has never been heard. I first encountered the file on 3/3/2025 when the matter came up for mention and Mr. James Tugee Advocate representing the contemnor informed the Court that the matter had an application dated 11/3/2024, which the Judge had heard but recused himself and did not render the Ruling. Counsel for the contemnor asked the Court to give a date for oral highlighting of the application.
2. This Court then gave the date of 2/4/2025 for highlighting of the aforesaid application, which was seeking for review and setting aside of the orders of contempt of court and the orders extracted and served upon the contemnor which, according to the applicant contemnor, were not the orders which the Judge had given.
3. The aforesaid application was not heard on 2/4/2025 owing to delay by the exparte applicant in filing its response and it was not until 29/9/2025, with back-and-forth directions being given by the Court that the application was heard and a ruling set for 3/11/2025. The Ruling was delivered as scheduled, dismissing the application.
4. It is important to note that all along, it was the contemnor who had sought to set aside the orders which he is alleged to have disobeyed and the contempt proceedings, claiming that he was no longer the managing director of the interested party.
5. Another oral application by the contemnor for leave to appeal and an interim stay of the ruling dismissing the application for setting aside orders on contempt of court was dismissed in a ruling rendered the same day upon which the interested party’s counsel, Mr. Rapando got aggrieved by the dismissal of the oral application for stay and leave to appeal made by the contemnor and he asked me to recuse myself from this case. He later filed a formal application for recusal.
6. This Court on its part, as the application for recusal had not been filed, set the matter to be mentioned on 12/11/2025 when the contemnor was expected to attend court for mitigation. This opportunity for mitigation was accorded to the contemnor, despite Mr. Kinyanjui’s submission that the contemnor should come for sentencing and not mitigation since the order of sentencing stands and that he had challenged the earlier orders dismissing his application for setting aside contempt orders issued against him, to the Court of Appeal hence the contemnor had not been deprived of the right of appeal by this Court dismissing the oral application for leave to appeal and stay.
7. It should be noted that this court had not encountered the contemnor at all and that therefore I found it necessary to accord him a further opportunity to mitigate further, which mitigation would, in any event, indicate whether he had now purged the contempt, since contempt of court is a continuing act and would or may have been purged along the way in this long-standing matter.
8. Mr. Ndegwa counsel for the interested party on the other hand also informed this Court that there is a pending preliminary objection dated 27/2/2024 and the court had on 25/2/2024 given directions on the same.
9. When the matter came up for mitigation on 12/11/2025, Mr. Rapando for the interested party informed the court that he had since filed the application for my recusal from handling this matter. The Court therefore gave directions on the hearing of the application for recusal as filed on 8/11/2025.
10. Mr. Kinyanjui counsel for the exparte applicant had upon being served with the said application for recusal, filed grounds of opposition and he sought leave of court and three days to enable him file a replying affidavit. The Court granted timelines for filing of the response as sought, further affidavit and supplementary affidavit by the respective parties as well as written submissions and set the matter for mention to confirm compliance and to fix a ruling date on the application for my recusal on 2/12/2025.
11. On the later date, Mr. Ndegwa, the interested party’s counsel raised an objection to the replying affidavit filed by Mr. Kinyanjui counsel for the exparte applicant, submitting that the same was filed out of time without leave of court and that therefore the same should be struck out and expunged from the record. He also submitted that the grounds of opposition on their own could not be treated to be adequate in opposing the application for recusal and therefore the court should treat the application for recusal as being unopposed.
Submissions on objection raised by the interested party on the late filing of the replying affidavit
12. I now highlight the submissions by the interested party’s counsel and the exparte applicant on whether the replying affidavit filed by Mr. Kinyanjui, outside the three days sought and granted should be struck out and expunged from the record as prayed by the interested party’s counsel and whether grounds of opposition cannot be treated as a response to the application for response.
13. On behalf of the interested party, Mr. Rapando, acting alongside his colleague Mr. Ndegwa Advocate submitted that they had filed their submissions dated 26/11/2025. However, they raised issue with the Replying affidavit which had been was filed on 19/11/2025 and served on them the same day. He urged this court to strike out the replying affidavit because it was filed out of time.
14. Mr. Rapando submitted that the period for filing of the replying affidavit lapsed on 15/11/2025. He prayed that the same be expunged from the record and their application for recusal of the judge be delivered as unopposed. He relied on the case of Mativo vs KCB Bank Cause No. E001/2021 where Justice Agnes Kitiku Nzei is said to have stated that court orders are not suggestions and any thing filed out of time is an illegality, the learned Judge relying on the supreme Court decision in the Nicholas Arap Salat case.
15. In response and opposing the challenge to the replying affidavit, Mr. Kinyanjui submitted that people in glass houses do not throw stones. He raised several issues. On the allegation that the interested party’s application is unopposed, Mr. Kinyanjui submitted that he had earlier on 12/11/2025 when he sought leave of 3 days to file a replying affidavit informed the court that he had already filed grounds of objection dated 11/11/2025. On the delay in filing the replying affidavit outside the 3 days sought and granted by this court, Mr. Kinyanjui submitted that the 3 days lapsed on a Saturday and that his staff were away; not working until Monday when he prepared the affidavit. He submitted that he could only work on the Monday which was on 17/11/2025 when he filed the Replying affidavit, which, according to him, was not out of time as per the law.
16. Mr. Kinyanjui submitted that it was not until he served the written submissions dated 24/11/2025 upon the interested party’s counsel that the interested party’s counsel wrote him an email threatening to do what he has done quite belligerently, without giving the exparte applicant the opportunity to explain to the court that time of 3 days lapsed on a Saturday and that he also wrote back an email explaining that he would apply to strike out the written submissions filed out of time without leave of the court.
17. On the decision cited by Mr. Rapando, Mr. Kinyanjui submitted that the decisions by Agnes Kitiku Nzei J are persuasive. He submitted that Article 159(2)(d) of the Constitution calls on this court to exercise judicial discretion and that in the absence of any prejudice being occasioned to any party, this court cannot condemn any party unheard, as that would be contrary to Article 50(1) of the Constitution and against the Rule that fair trial is unlimited Article 25 of the Constitution.
18. The other point submitted on by Mr. Kinyanjui was that the law governing rules on filing of affidavits is Order 19 Rule 5 of the Civil Procedure Rules giving the court discretion to admit affidavit evidence. He submitted that in this case, there was no allegation of breach of the said Rules. He submitted that the only lamentation by Mr. Rapando was the filing out of the 3 days granted by the court yet the interested party had used the same affidavit to file his written submissions.
19. Counsel for the exparte applicant maintained that there is no law cited, by which this court to strike out the replying affidavit. He submitted that the interested party applicant wants to jump the gun and seek striking out of the replying affidavit yet they themselves had not filed their submissions within the time granted by the court and that they did so without leave of court, which, in his view, was not a balancing act to justice.
20. Counsel also submitted that the submission to strike out the affidavit was premature as the interested party rushed to raise the objection before Mr, Kinyanjui could seek for enlargement of time and he sought the court’s discretion to enlarge time because if the affidavit is struck out, there would be no basis for the interested party’s submissions.
21. In a very terse rejoinder by Mr. Ndegwa appearing together with Mr. Rapando for the interested party, submitted that to the extent that the affidavit was filed out of time, then the application for recusal of the Judge was unopposed.
22. On the persuasiveness of the cases that he had cited, Mr. Ndegwa submitted that the Judges quoted the Supreme Court decision in the Nicholas Salat v IEBC case. He also relied on the decision in the Konchellah case which refers to the question of whether grounds of opposition are sufficient response to an application. He submitted that Paragraph 9 of the Gideon Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR decision is explicit that a replying affidavit is the principal document where a respondents’ reply is set.
23. On reliance on Article 159(2)(d) of the Constitution by Mr. Kinyanjui, he submitted that court orders/directions are not mere suggestions and should be strictly complied with. He relied on the cases of Mativo vs KCB and the Nick Salaat vs IEBC where the court is said to have been clear that documents filed out of time will not be accepted and that Article 159 is not an excuse or a basis. He maintained that leave must first be obtained before filing the replying affidavit out of time.
24. On interpretation of when time runs, he submitted that, under Section 57 of the Interpretation and General Provisions Act, the only day which is excluded is a Sunday. That in this case, the replying affidavit was filed on Wednesday at night and conveniently claimed to have been filed within 3 days, yet it was filed on 19 th November, 2025 instead of 17 th November, 2025 which was a Monday.
25. On allegation that they had filed their submissions late, Mr. Ndegwa submitted that they were given 7 days upon Mr. Kinyanjui filing a proper and competent affidavit. That in the absence of a competent affidavit, the days were not triggered for them to file their submissions but that they nonetheless filed their submissions within 7 days of being served with an incompetent affidavit hence their submissions are properly on record.
26. On allegation of being condemned unheard, Mr. Ndegwa wondered whether Mr. Kinyanjui and his client were acting for the Judge whom the interested party has sought to recuse from handling this matter, since the exparte applicant is not the one on trial. He submitted that if the Replying affidavit was admitted on record on that day, then they had a right to file a reply to it.
27. On the question of prejudice, Mr. Rapando submitted that there was no competent affidavit before court hence, their client will not have responded to it and that the submissions which they had filed did not respond to the issues raised by Mr. Kinyanjui in the replying affidavit as the said affidavit was not properly on record hence it should be expunged from the record.
28. In his further submission with leave of Court in view of the fresh decision referred to by the interested party’s counsel, Mr. Kinyanjui first sought to correct his earlier submission where he had cited the incorrect Rule under Order 19 of the Civil procedure Rules and stated that he meant Order 19 Rule 7 of the Civil Procedure Rules, not Order 19 Rule 5.
29. On the Konchellah decision that grounds of objection cannot be sufficient response, Mr. Kinyanjui submitted that in the Supreme Court and the Court of Appeal, there is no room for filing of grounds of opposition, only the Replying affidavit; unlike in the High Court where Order 51 Rule 14(1) (c) of the Civil Procedure Rules is a Plant, Springboard upon the party may file Grounds of Opposition (read out the provision), maintaining that the Supreme Court Rules do not apply to these proceedings.
30. Mr. Ndegwa then rejoined with leave of court, clarifying that in the context of the Supreme Court decision of the Konchellah Case, it was made in the context that an application is supported by an affidavit so, one can only contradict an affidavit with another affidavit otherwise the contents of the affidavit remain uncontroverted.
Analysis and determination
31. I have considered all the arguments for and against the replying affidavit filed by the exparte applicant’s counsel on 19 th November 2025 and the, main issue for determination is whether that affidavit is competently on record and if not, what orders should the court make.
32. On 12/11/2025, this court gave directions, granting the exparte applicant, represented by Mr. Kinyanjui, three days within which to file his replying affidavit in addition to the grounds of objection to the interested party’s application dated 8/11/2025 for my recusal from handling this matter. The interested party was then given seven days, from the date of service by the exparte applicant’s counsel, within which to file and serve a further affidavit, if need be, together with written submissions. Additionally, the exparte applicant was granted seven days of the date of service by the interested party, within which to file and serve a supplementary affidavit if need arises, together with written submissions. With those clear directions in mind, the court then set a mention date for 2/12/2025 to fix a ruling date on the application for recusal dated 8/11/2025.
33. On 2/12/2025 is when the interested party’s counsel Mr. Ndegwa and Mr. Rapando quickly raised the issue of the exparte applicant having filed the replying affidavit on 19/11/2025 out of the three days given by the court and also submitted that on their part, they had complied with the court’s directions and filed their submissions dated 26/11/2025.
34. Mr. Kinyanjui’s defence was that the application to strike out his client’s replying affidavit was premature and that the interested party’s counsel did not even give him a chance to address the court on why he had filed the replying affidavit on the 19/11/2025, which he believes was in time as the last day fell on a Saturday and that his staff were away hence the late filing. He also submitted that this court has discretion to enlarge time for filing of the said affidavit, noting that there is no prejudice. The interested party’s counsel maintained that the court cannot admit an affidavit filed out of time under whatever circumstances, citing the Supreme Court decision in the Nicholas Arap Salat v Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling) ( Nicholas Arap Salat case .)
35. From the onset, and this court agrees with the interested party’s counsel’s submission s that Directions of the Court, including those requiring the filing of a replying affidavit within a specified timeframe, are not mere suggestions but binding orders. They must be complied with strictly and timeously. Article 159 (2) (b) of the Constitution enjoins this Court to facilitate the expeditious delivery of justice and therefore, disregard of prescribed timelines not only impedes that constitutional imperative but also undermines the authority of the Court.
36. In this case, it is not in dispute that the exparte applicant filed the replying affidavit on 19 th November, 2025 followed later by written submissions on 24 th November, 2025.
37. On whether the replying affidavit sworn on 17 th November, 2025 by Duncan Murunga Mwaura and filed in court on 19 th November, 2025 was filed out of time, the court must compute the time as provided for in law.
38. The law on computation of time is the Interpretation and General provisions Act at section 57 which provides that:
57. Computation of time
In computing time for the purposes of a written law, unless the contrary intention appears—
(a) a period of days from the happening of an event or the doing of an act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done;
(b) if the last day of the period is Sunday or a public holiday or all official non-working days (which days are in this section referred to as excluded days), the period shall include the next following day, not being an excluded day;
(c ) where an act or proceeding is directed or allowed to be done or taken on a certain day, then if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day;
(d ) where an act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, excluded days shall not be reckoned in the computation of the time .
39. On the other hand, the procedural rules under Order 50 Rule 8 of the Civil Procedure Rules provides that:
50(8) Computation of days [Order 50, rule 8]
In any case in which any particular number of days not expressed to be clear days is prescribed under these Rules or by an order or direction of the court, the same shall be reckoned exclusively of the first day and inclusively of the last day.
40. Thus, in this case, where the order for filing of a replying affidavit was made on 12/11/2025 which was a Wednesday, the 12 th November, 2025 is an excluded day and we start counting 13 th , 14 th and 15th, with the latter day being the last day for filing of the replying affidavit and which was a Saturday.
41. However, since Saturday is not a working day, it is an excluded da y according to section 57 of the Interpretation and General Provisions Act. It was therefore expected that the exparte applicant files the replying affidavit on Monday the 17 th November, 2025 which was the next working day. This is in line with the provisions of Order 50 Rule 3 of the Civil Procedure Rules which provides that:
50(3) Time expiring on Sunday or day offices closed [Order 50, rule 3]
Where the time for doing any act or taking any proceeding expires on a Sunday or other day on which the offices are closed, and by reason thereof, such act or proceeding cannot be done, or taken on that day, such act or proceeding shall so far as regards the time of doing or taking the same, be held to be duly done or taken if done or taken on the day on which the offices shall next be open. [emphasis added]
42. Saturday is one of those days when the Courts are closed and although filing of documents into court is no longer physical, a person filing may still require services of the court staff for intervention for example, a request for mapping or where the system may be down. As such, Saturday not being a working day, the day on which the court was next open was a Monday which was on 17 th November, 2025.
43. From the court record, the exparte applicant did not file the replying affidavit on 17 th November, 2025. He instead filed it on 19 th November, 2025 and although he initially maintained that he filed within time, he conceded that this was filed out of time, the reason being that his staff were away and further submitted that there is no prejudice occasioned on the interested party. He submitted that this Court cannot deny the exparte applicant a right to be heard or condemn them unheard as that would be in violation of Article 50(1) of the Constitution. He therefore urged this Court not to strike out or expunge the affidavit from the record as that would undermine the administration of justice.
44. That said, it is not in doubt that this Court retains inherent discretionary power to enlarge prescribed timelines where sufficient cause is shown, taking into account unforeseen or excusable circumstances. Such discretion will, however, only be exercised where the delay is neither inordinate nor unreasonable, where the delay is explained to the satisfaction of the Court and where no prejudice is occasioned to the other party or to the expeditious administration of justice. It is for that reason that the law provides for extension of time under Order 50 Rule 6 of the Civil Procedure Rules which provides:
(6). Power to enlarge time [Order 50, rule 6]
Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require , and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:
Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.
45. The interested party tersely submits that such time cannot be enlarged post the filing of the replying affidavit because the Supreme Court has spoken, as cited by Agnes Kitiku Nzei J in Mativo vs KCB Bank Cause No. E001/2021.
46. I shall now proceed to consider the cited decision by Nzei J, citing the Supreme Court case of Nicholas Arap Salat , together with other authorities relied upon.
47. I must, however, state by way of caution that while this Court is bound by the decisions of courts superior to it, namely the Court of Appeal and the Supreme Court, it is neither obliged nor prepared to adopt, without critical scrutiny, decisions of courts of coordinate or concurrent jurisdiction. Such decisions are merely persuasive and do not bind this Court, notwithstanding that they may have relied upon or cited decisions of the Supreme Court or the Court of Appeal, in circumstances which may be different from the case at hand.
48. In the aforesaid Mativo v KCB case, on May 9, 2022, the learned judge made the following orders : -
"(1) the application for adjournment is allowed; and is marked as the last adjournment on the part of the respondent.
(2) the respondent is granted leave to file and serve a further list of documents placing on record certified copies of its documents nos. 4,5,6 and 8 within 14 days of today.
(3)defence hearing on September 26, 2022.”
49. However, the respondent did not file a further list of documents within the 14 days ordered and did not seek extension of time and/or leave to file the documents outside the time limit set by the court if, for whatever reason, it was unable to file the documents within the time ordered. On September 16, 2022, the respondent filed a further list and bundle of documents dated September 15, 2022 without first seeking the court's leave to file the documents out of time.
50. Subsequently, the claimant filed an application seeking orders: -
a. that the court be pleased to strike out and/or expunge from the court's record the respondent's further list and bundle of documents dated September 15, 2022.
b. that costs of the application be provided for.
51. The learned Judge considered the said application, which the respondent had opposed and delivered a ruling February 9, 2023, rendering itself as follows:
"12. The respondent's list and bundle of documents dated September 15, 2022 and filed in court on September 16, 2022, out of time and without leave, is not legally on record. It is invalid and an illegality .
13. Consequently, the claimant's notice of motion dated September 20, 2022 is merited and is allowed. The respondent's further list and bundle of documents dated September 15, 2022 is hereby struck out, and is expunged from the court's record."
52. The Supreme Court in the Nicholas Arap salat case indeed set out principles to be considered in exercise of discretion to extend time for filing appeals. The Court considered the following issues which related to the timelines set by the Elections Act in filing of Appeals:
Issues
i. Whether the intended appeal raised any constitutional matters to warrant it being an appeal filed as of right without certification.
ii. Whether the Supreme Court had jurisdiction to extend time to file an election petition appeal out of time.
iii. Whether the applicant had laid satisfactory basis to warrant the court to extent time to file the appeal.
iv. Whether a letter addressed to the Registrar was a sufficient way of withdrawing an application before the Court of Appeal.
53. In its holding, the Supreme Court found that:
i. Pursuant to rule 33(1) of the Supreme Court Rules, 2012, it was mandatory that an appeal be filed within 30 days of filing the notice of appeal. Under rule 53 of the same Rules, the Supreme Court could indeed extend time. However, it could not to be gainsaid that where the law provided for the time within which something ought to be done, if that time lapsed, one needed to first seek extension of that time before he could proceed to do that which the law required.
ii. The applicant, by filing an appeal out of time before seeking extension of time, and subsequently asking the court to extend time and recognize such ‘an appeal’, was tantamount to moving the court to remedy an illegality which the court could not do and such a document was unknown in law.
iii. Where one intended to file an appeal out of time and sought an extension of time, the much he could do was to annex the draft intended petition of appeal for the court’s perusal when making his application for extension of time; and not to file an appeal and seek to legalize it.
iv. Under the Supreme Court Rules, 2012, one did not need to seek and get certification before filing a notice of appeal. A notice of appeal was a primary document which could be filed whether or not the subject matter under appeal was that which required leave or not.
v. From the notice of appeal, it was clear that the applicant expressed a general intention to appeal the Court of Appeal's decision. He did not state that he intended to appeal as of right or on the basis that the matter involved matters of general public importance. Further, the same was to be filed pursuant to article 163(4) (a) of the Constitution.
vi. The applicant intended to move the court as of right where no leave was required. Whether, the intended appeal properly fell under the realm of the court’s jurisdiction was a substantive matter to be decided in the main appeal, if and when filed. Thus, where a party moved the court as of right, a respondent could not move to strike out such an appeal during the hearing of an application for extension of time. Such a respondent ought to wait until the intended appeal was properly filed.
vii. The notice of appeal having been filed within the 14 days of the decision of the Court of Appeal that was intended to be appealed against, and given that the applicant sought to come to the court as of right, there was no legal mandatory requirement for certification first and the same was proper.
viii. Whether or not the constitutional questions framed by the applicant were indeed canvassed and determined by the Court of Appeal was a substantive question that rightly fell for determination during the hearing of the appeal if and when filed.
ix. The application for determination was for extension of time to file an appeal. Determining that the appeal did not involve constitutional issues would amount to a court deciding on a matter that was not before it. All that the court needed to determine was whether the applicant had a prima facie case that raised issues of constitutional interpretation and/or application.
x. The intended appeal revolved around the application and interpretation of articles 81 and 86 of the Constitution of Kenya, 2010 on general principles for the electoral system and voting. The applicant had also expressed an intention to invoke the court’s jurisdiction under article 163(4) (a) of the Constitution of Kenya, 2010. Hence, the applicant had established a prima facie case to approach the court as of right.
xi. Time was of the essence in election matters where the people’s sovereign power to elect their legal representatives was inv
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E.131 OF 2022
REPUBLIC…………………...…………………........................ APPLICANT
VERSUS
NAIROBI METROPOLITAN
SERVICES (NMS)..……………………………………... 1 ST RESPONDENT
THE DIRECTOR ROADS, PUBLIC WORKS
& TRANSPORT, NMS…………………………………...2 ND RESPONDENT
THE DIRECTOR OF ENFORCEMENT, NMS……….3 RD RESPONDENT
THE INSPECTOR GENERAL OF POLICE…………..4 TH RESPONDENT
THE DTO CENTRAL POLICE STATION…………... 5 TH RESPONDENT
THE HON. ATTORNEY GENERAL…………………..6 TH RESPONDENT
AND
METRO TRANS E. A LTD…………………………INTERESTED PARTY
AND
KAKA TRAVELLERS CO-OPERATIVE SAVINGS
AND CREDIT SOCIETY LTD………..…………EX-PARTE APPLICANT
AND
ROSANA OSCAR OMURWA……………….CONTEMNOR/APPLICANT
RULING ON ADMISSIBILITY OF AFFIDAVIT FILED LATE
Introduction
1. This matter has a chequered history. It was filed in 2022 and to date, the substantive notice of motion has never been heard. I first encountered the file on 3/3/2025 when the matter came up for mention and Mr. James Tugee Advocate representing the contemnor informed the Court that the matter had an application dated 11/3/2024, which the Judge had heard but recused himself and did not render the Ruling. Counsel for the contemnor asked the Court to give a date for oral highlighting of the application.
2. This Court then gave the date of 2/4/2025 for highlighting of the aforesaid application, which was seeking for review and setting aside of the orders of contempt of court and the orders extracted and served upon the contemnor which, according to the applicant contemnor, were not the orders which the Judge had given.
3. The aforesaid application was not heard on 2/4/2025 owing to delay by the exparte applicant in filing its response and it was not until 29/9/2025, with back-and-forth directions being given by the Court that the application was heard and a ruling set for 3/11/2025. The Ruling was delivered as scheduled, dismissing the application.
4. It is important to note that all along, it was the contemnor who had sought to set aside the orders which he is alleged to have disobeyed and the contempt proceedings, claiming that he was no longer the managing director of the interested party.
5. Another oral application by the contemnor for leave to appeal and an interim stay of the ruling dismissing the application for setting aside orders on contempt of court was dismissed in a ruling rendered the same day upon which the interested party’s counsel, Mr. Rapando got aggrieved by the dismissal of the oral application for stay and leave to appeal made by the contemnor and he asked me to recuse myself from this case. He later filed a formal application for recusal.
6. This Court on its part, as the application for recusal had not been filed, set the matter to be mentioned on 12/11/2025 when the contemnor was expected to attend court for mitigation. This opportunity for mitigation was accorded to the contemnor, despite Mr. Kinyanjui’s submission that the contemnor should come for sentencing and not mitigation since the order of sentencing stands and that he had challenged the earlier orders dismissing his application for setting aside contempt orders issued against him, to the Court of Appeal hence the contemnor had not been deprived of the right of appeal by this Court dismissing the oral application for leave to appeal and stay.
7. It should be noted that this court had not encountered the contemnor at all and that therefore I found it necessary to accord him a further opportunity to mitigate further, which mitigation would, in any event, indicate whether he had now purged the contempt, since contempt of court is a continuing act and would or may have been purged along the way in this long-standing matter.
8. Mr. Ndegwa counsel for the interested party on the other hand also informed this Court that there is a pending preliminary objection dated 27/2/2024 and the court had on 25/2/2024 given directions on the same.
9. When the matter came up for mitigation on 12/11/2025, Mr. Rapando for the interested party informed the court that he had since filed the application for my recusal from handling this matter. The Court therefore gave directions on the hearing of the application for recusal as filed on 8/11/2025.
10. Mr. Kinyanjui counsel for the exparte applicant had upon being served with the said application for recusal, filed grounds of opposition and he sought leave of court and three days to enable him file a replying affidavit. The Court granted timelines for filing of the response as sought, further affidavit and supplementary affidavit by the respective parties as well as written submissions and set the matter for mention to confirm compliance and to fix a ruling date on the application for my recusal on 2/12/2025.
11. On the later date, Mr. Ndegwa, the interested party’s counsel raised an objection to the replying affidavit filed by Mr. Kinyanjui counsel for the exparte applicant, submitting that the same was filed out of time without leave of court and that therefore the same should be struck out and expunged from the record. He also submitted that the grounds of opposition on their own could not be treated to be adequate in opposing the application for recusal and therefore the court should treat the application for recusal as being unopposed.
Submissions on objection raised by the interested party on the late filing of the replying affidavit
12. I now highlight the submissions by the interested party’s counsel and the exparte applicant on whether the replying affidavit filed by Mr. Kinyanjui, outside the three days sought and granted should be struck out and expunged from the record as prayed by the interested party’s counsel and whether grounds of opposition cannot be treated as a response to the application for response.
13. On behalf of the interested party, Mr. Rapando, acting alongside his colleague Mr. Ndegwa Advocate submitted that they had filed their submissions dated 26/11/2025. However, they raised issue with the Replying affidavit which had been was filed on 19/11/2025 and served on them the same day. He urged this court to strike out the replying affidavit because it was filed out of time.
14. Mr. Rapando submitted that the period for filing of the replying affidavit lapsed on 15/11/2025. He prayed that the same be expunged from the record and their application for recusal of the judge be delivered as unopposed. He relied on the case of Mativo vs KCB Bank Cause No. E001/2021 where Justice Agnes Kitiku Nzei is said to have stated that court orders are not suggestions and any thing filed out of time is an illegality, the learned Judge relying on the supreme Court decision in the Nicholas Arap Salat case.
15. In response and opposing the challenge to the replying affidavit, Mr. Kinyanjui submitted that people in glass houses do not throw stones. He raised several issues. On the allegation that the interested party’s application is unopposed, Mr. Kinyanjui submitted that he had earlier on 12/11/2025 when he sought leave of 3 days to file a replying affidavit informed the court that he had already filed grounds of objection dated 11/11/2025. On the delay in filing the replying affidavit outside the 3 days sought and granted by this court, Mr. Kinyanjui submitted that the 3 days lapsed on a Saturday and that his staff were away; not working until Monday when he prepared the affidavit. He submitted that he could only work on the Monday which was on 17/11/2025 when he filed the Replying affidavit, which, according to him, was not out of time as per the law.
16. Mr. Kinyanjui submitted that it was not until he served the written submissions dated 24/11/2025 upon the interested party’s counsel that the interested party’s counsel wrote him an email threatening to do what he has done quite belligerently, without giving the exparte applicant the opportunity to explain to the court that time of 3 days lapsed on a Saturday and that he also wrote back an email explaining that he would apply to strike out the written submissions filed out of time without leave of the court.
17. On the decision cited by Mr. Rapando, Mr. Kinyanjui submitted that the decisions by Agnes Kitiku Nzei J are persuasive. He submitted that Article 159(2)(d) of the Constitution calls on this court to exercise judicial discretion and that in the absence of any prejudice being occasioned to any party, this court cannot condemn any party unheard, as that would be contrary to Article 50(1) of the Constitution and against the Rule that fair trial is unlimited Article 25 of the Constitution.
18. The other point submitted on by Mr. Kinyanjui was that the law governing rules on filing of affidavits is Order 19 Rule 5 of the Civil Procedure Rules giving the court discretion to admit affidavit evidence. He submitted that in this case, there was no allegation of breach of the said Rules. He submitted that the only lamentation by Mr. Rapando was the filing out of the 3 days granted by the court yet the interested party had used the same affidavit to file his written submissions.
19. Counsel for the exparte applicant maintained that there is no law cited, by which this court to strike out the replying affidavit. He submitted that the interested party applicant wants to jump the gun and seek striking out of the replying affidavit yet they themselves had not filed their submissions within the time granted by the court and that they did so without leave of court, which, in his view, was not a balancing act to justice.
20. Counsel also submitted that the submission to strike out the affidavit was premature as the interested party rushed to raise the objection before Mr, Kinyanjui could seek for enlargement of time and he sought the court’s discretion to enlarge time because if the affidavit is struck out, there would be no basis for the interested party’s submissions.
21. In a very terse rejoinder by Mr. Ndegwa appearing together with Mr. Rapando for the interested party, submitted that to the extent that the affidavit was filed out of time, then the application for recusal of the Judge was unopposed.
22. On the persuasiveness of the cases that he had cited, Mr. Ndegwa submitted that the Judges quoted the Supreme Court decision in the Nicholas Salat v IEBC case. He also relied on the decision in the Konchellah case which refers to the question of whether grounds of opposition are sufficient response to an application. He submitted that Paragraph 9 of the Gideon Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR decision is explicit that a replying affidavit is the principal document where a respondents’ reply is set.
23. On reliance on Article 159(2)(d) of the Constitution by Mr. Kinyanjui, he submitted that court orders/directions are not mere suggestions and should be strictly complied with. He relied on the cases of Mativo vs KCB and the Nick Salaat vs IEBC where the court is said to have been clear that documents filed out of time will not be accepted and that Article 159 is not an excuse or a basis. He maintained that leave must first be obtained before filing the replying affidavit out of time.
24. On interpretation of when time runs, he submitted that, under Section 57 of the Interpretation and General Provisions Act, the only day which is excluded is a Sunday. That in this case, the replying affidavit was filed on Wednesday at night and conveniently claimed to have been filed within 3 days, yet it was filed on 19 th November, 2025 instead of 17 th November, 2025 which was a Monday.
25. On allegation that they had filed their submissions late, Mr. Ndegwa submitted that they were given 7 days upon Mr. Kinyanjui filing a proper and competent affidavit. That in the absence of a competent affidavit, the days were not triggered for them to file their submissions but that they nonetheless filed their submissions within 7 days of being served with an incompetent affidavit hence their submissions are properly on record.
26. On allegation of being condemned unheard, Mr. Ndegwa wondered whether Mr. Kinyanjui and his client were acting for the Judge whom the interested party has sought to recuse from handling this matter, since the exparte applicant is not the one on trial. He submitted that if the Replying affidavit was admitted on record on that day, then they had a right to file a reply to it.
27. On the question of prejudice, Mr. Rapando submitted that there was no competent affidavit before court hence, their client will not have responded to it and that the submissions which they had filed did not respond to the issues raised by Mr. Kinyanjui in the replying affidavit as the said affidavit was not properly on record hence it should be expunged from the record.
28. In his further submission with leave of Court in view of the fresh decision referred to by the interested party’s counsel, Mr. Kinyanjui first sought to correct his earlier submission where he had cited the incorrect Rule under Order 19 of the Civil procedure Rules and stated that he meant Order 19 Rule 7 of the Civil Procedure Rules, not Order 19 Rule 5.
29. On the Konchellah decision that grounds of objection cannot be sufficient response, Mr. Kinyanjui submitted that in the Supreme Court and the Court of Appeal, there is no room for filing of grounds of opposition, only the Replying affidavit; unlike in the High Court where Order 51 Rule 14(1) (c) of the Civil Procedure Rules is a Plant, Springboard upon the party may file Grounds of Opposition (read out the provision), maintaining that the Supreme Court Rules do not apply to these proceedings.
30. Mr. Ndegwa then rejoined with leave of court, clarifying that in the context of the Supreme Court decision of the Konchellah Case, it was made in the context that an application is supported by an affidavit so, one can only contradict an affidavit with another affidavit otherwise the contents of the affidavit remain uncontroverted.
Analysis and determination
31. I have considered all the arguments for and against the replying affidavit filed by the exparte applicant’s counsel on 19 th November 2025 and the, main issue for determination is whether that affidavit is competently on record and if not, what orders should the court make.
32. On 12/11/2025, this court gave directions, granting the exparte applicant, represented by Mr. Kinyanjui, three days within which to file his replying affidavit in addition to the grounds of objection to the interested party’s application dated 8/11/2025 for my recusal from handling this matter. The interested party was then given seven days, from the date of service by the exparte applicant’s counsel, within which to file and serve a further affidavit, if need be, together with written submissions. Additionally, the exparte applicant was granted seven days of the date of service by the interested party, within which to file and serve a supplementary affidavit if need arises, together with written submissions. With those clear directions in mind, the court then set a mention date for 2/12/2025 to fix a ruling date on the application for recusal dated 8/11/2025.
33. On 2/12/2025 is when the interested party’s counsel Mr. Ndegwa and Mr. Rapando quickly raised the issue of the exparte applicant having filed the replying affidavit on 19/11/2025 out of the three days given by the court and also submitted that on their part, they had complied with the court’s directions and filed their submissions dated 26/11/2025.
34. Mr. Kinyanjui’s defence was that the application to strike out his client’s replying affidavit was premature and that the interested party’s counsel did not even give him a chance to address the court on why he had filed the replying affidavit on the 19/11/2025, which he believes was in time as the last day fell on a Saturday and that his staff were away hence the late filing. He also submitted that this court has discretion to enlarge time for filing of the said affidavit, noting that there is no prejudice. The interested party’s counsel maintained that the court cannot admit an affidavit filed out of time under whatever circumstances, citing the Supreme Court decision in the Nicholas Arap Salat v Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling) ( Nicholas Arap Salat case .)
35. From the onset, and this court agrees with the interested party’s counsel’s submission s that Directions of the Court, including those requiring the filing of a replying affidavit within a specified timeframe, are not mere suggestions but binding orders. They must be complied with strictly and timeously. Article 159 (2) (b) of the Constitution enjoins this Court to facilitate the expeditious delivery of justice and therefore, disregard of prescribed timelines not only impedes that constitutional imperative but also undermines the authority of the Court.
36. In this case, it is not in dispute that the exparte applicant filed the replying affidavit on 19 th November, 2025 followed later by written submissions on 24 th November, 2025.
37. On whether the replying affidavit sworn on 17 th November, 2025 by Duncan Murunga Mwaura and filed in court on 19 th November, 2025 was filed out of time, the court must compute the time as provided for in law.
38. The law on computation of time is the Interpretation and General provisions Act at section 57 which provides that:
57. Computation of time
In computing time for the purposes of a written law, unless the contrary intention appears—
(a) a period of days from the happening of an event or the doing of an act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done;
(b) if the last day of the period is Sunday or a public holiday or all official non-working days (which days are in this section referred to as excluded days), the period shall include the next following day, not being an excluded day;
(c ) where an act or proceeding is directed or allowed to be done or taken on a certain day, then if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day;
(d ) where an act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, excluded days shall not be reckoned in the computation of the time .
39. On the other hand, the procedural rules under Order 50 Rule 8 of the Civil Procedure Rules provides that:
50(8) Computation of days [Order 50, rule 8]
In any case in which any particular number of days not expressed to be clear days is prescribed under these Rules or by an order or direction of the court, the same shall be reckoned exclusively of the first day and inclusively of the last day.
40. Thus, in this case, where the order for filing of a replying affidavit was made on 12/11/2025 which was a Wednesday, the 12 th November, 2025 is an excluded day and we start counting 13 th , 14 th and 15th, with the latter day being the last day for filing of the replying affidavit and which was a Saturday.
41. However, since Saturday is not a working day, it is an excluded da y according to section 57 of the Interpretation and General Provisions Act. It was therefore expected that the exparte applicant files the replying affidavit on Monday the 17 th November, 2025 which was the next working day. This is in line with the provisions of Order 50 Rule 3 of the Civil Procedure Rules which provides that:
50(3) Time expiring on Sunday or day offices closed [Order 50, rule 3]
Where the time for doing any act or taking any proceeding expires on a Sunday or other day on which the offices are closed, and by reason thereof, such act or proceeding cannot be done, or taken on that day, such act or proceeding shall so far as regards the time of doing or taking the same, be held to be duly done or taken if done or taken on the day on which the offices shall next be open. [emphasis added]
42. Saturday is one of those days when the Courts are closed and although filing of documents into court is no longer physical, a person filing may still require services of the court staff for intervention for example, a request for mapping or where the system may be down. As such, Saturday not being a working day, the day on which the court was next open was a Monday which was on 17 th November, 2025.
43. From the court record, the exparte applicant did not file the replying affidavit on 17 th November, 2025. He instead filed it on 19 th November, 2025 and although he initially maintained that he filed within time, he conceded that this was filed out of time, the reason being that his staff were away and further submitted that there is no prejudice occasioned on the interested party. He submitted that this Court cannot deny the exparte applicant a right to be heard or condemn them unheard as that would be in violation of Article 50(1) of the Constitution. He therefore urged this Court not to strike out or expunge the affidavit from the record as that would undermine the administration of justice.
44. That said, it is not in doubt that this Court retains inherent discretionary power to enlarge prescribed timelines where sufficient cause is shown, taking into account unforeseen or excusable circumstances. Such discretion will, however, only be exercised where the delay is neither inordinate nor unreasonable, where the delay is explained to the satisfaction of the Court and where no prejudice is occasioned to the other party or to the expeditious administration of justice. It is for that reason that the law provides for extension of time under Order 50 Rule 6 of the Civil Procedure Rules which provides:
(6). Power to enlarge time [Order 50, rule 6]
Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require , and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:
Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.
45. The interested party tersely submits that such time cannot be enlarged post the filing of the replying affidavit because the Supreme Court has spoken, as cited by Agnes Kitiku Nzei J in Mativo vs KCB Bank Cause No. E001/2021.
46. I shall now proceed to consider the cited decision by Nzei J, citing the Supreme Court case of Nicholas Arap Salat , together with other authorities relied upon.
47. I must, however, state by way of caution that while this Court is bound by the decisions of courts superior to it, namely the Court of Appeal and the Supreme Court, it is neither obliged nor prepared to adopt, without critical scrutiny, decisions of courts of coordinate or concurrent jurisdiction. Such decisions are merely persuasive and do not bind this Court, notwithstanding that they may have relied upon or cited decisions of the Supreme Court or the Court of Appeal, in circumstances which may be different from the case at hand.
48. In the aforesaid Mativo v KCB case, on May 9, 2022, the learned judge made the following orders : -
"(1) the application for adjournment is allowed; and is marked as the last adjournment on the part of the respondent.
(2) the respondent is granted leave to file and serve a further list of documents placing on record certified copies of its documents nos. 4,5,6 and 8 within 14 days of today.
(3)defence hearing on September 26, 2022.”
49. However, the respondent did not file a further list of documents within the 14 days ordered and did not seek extension of time and/or leave to file the documents outside the time limit set by the court if, for whatever reason, it was unable to file the documents within the time ordered. On September 16, 2022, the respondent filed a further list and bundle of documents dated September 15, 2022 without first seeking the court's leave to file the documents out of time.
50. Subsequently, the claimant filed an application seeking orders: -
a. that the court be pleased to strike out and/or expunge from the court's record the respondent's further list and bundle of documents dated September 15, 2022.
b. that costs of the application be provided for.
51. The learned Judge considered the said application, which the respondent had opposed and delivered a ruling February 9, 2023, rendering itself as follows:
"12. The respondent's list and bundle of documents dated September 15, 2022 and filed in court on September 16, 2022, out of time and without leave, is not legally on record. It is invalid and an illegality .
13. Consequently, the claimant's notice of motion dated September 20, 2022 is merited and is allowed. The respondent's further list and bundle of documents dated September 15, 2022 is hereby struck out, and is expunged from the court's record."
52. The Supreme Court in the Nicholas Arap salat case indeed set out principles to be considered in exercise of discretion to extend time for filing appeals. The Court considered the following issues which related to the timelines set by the Elections Act in filing of Appeals:
Issues
i. Whether the intended appeal raised any constitutional matters to warrant it being an appeal filed as of right without certification.
ii. Whether the Supreme Court had jurisdiction to extend time to file an election petition appeal out of time.
iii. Whether the applicant had laid satisfactory basis to warrant the court to extent time to file the appeal.
iv. Whether a letter addressed to the Registrar was a sufficient way of withdrawing an application before the Court of Appeal.
53. In its holding, the Supreme Court found that:
i. Pursuant to rule 33(1) of the Supreme Court Rules, 2012, it was mandatory that an appeal be filed within 30 days of filing the notice of appeal. Under rule 53 of the same Rules, the Supreme Court could indeed extend time. However, it could not to be gainsaid that where the law provided for the time within which something ought to be done, if that time lapsed, one needed to first seek extension of that time before he could proceed to do that which the law required.
ii. The applicant, by filing an appeal out of time before seeking extension of time, and subsequently asking the court to extend time and recognize such ‘an appeal’, was tantamount to moving the court to remedy an illegality which the court could not do and such a document was unknown in law.
iii. Where one intended to file an appeal out of time and sought an extension of time, the much he could do was to annex the draft intended petition of appeal for the court’s perusal when making his application for extension of time; and not to file an appeal and seek to legalize it.
iv. Under the Supreme Court Rules, 2012, one did not need to seek and get certification before filing a notice of appeal. A notice of appeal was a primary document which could be filed whether or not the subject matter under appeal was that which required leave or not.
v. From the notice of appeal, it was clear that the applicant expressed a general intention to appeal the Court of Appeal's decision. He did not state that he intended to appeal as of right or on the basis that the matter involved matters of general public importance. Further, the same was to be filed pursuant to article 163(4) (a) of the Constitution.
vi. The applicant intended to move the court as of right where no leave was required. Whether, the intended appeal properly fell under the realm of the court’s jurisdiction was a substantive matter to be decided in the main appeal, if and when filed. Thus, where a party moved the court as of right, a respondent could not move to strike out such an appeal during the hearing of an application for extension of time. Such a respondent ought to wait until the intended appeal was properly filed.
vii. The notice of appeal having been filed within the 14 days of the decision of the Court of Appeal that was intended to be appealed against, and given that the applicant sought to come to the court as of right, there was no legal mandatory requirement for certification first and the same was proper.
viii. Whether or not the constitutional questions framed by the applicant were indeed canvassed and determined by the Court of Appeal was a substantive question that rightly fell for determination during the hearing of the appeal if and when filed.
ix. The application for determination was for extension of time to file an appeal. Determining that the appeal did not involve constitutional issues would amount to a court deciding on a matter that was not before it. All that the court needed to determine was whether the applicant had a prima facie case that raised issues of constitutional interpretation and/or application.
x. The intended appeal revolved around the application and interpretation of articles 81 and 86 of the Constitution of Kenya, 2010 on general principles for the electoral system and voting. The applicant had also expressed an intention to invoke the court’s jurisdiction under article 163(4) (a) of the Constitution of Kenya, 2010. Hence, the applicant had established a prima facie case to approach the court as of right.
xi. Time was of the essence in election matters where the people’s sovereign power to elect their legal representatives was inv
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