Abdi v Kamalik [2022] KEHC 15128 (KLR)

Abdi v Kamalik (Election Appeal E001 of 2022) [2022] KEHC 15128 (KLR) (6 June 2022) (Ruling)

Neutral citation: [2022] KEHC 15128 (KLR)

Republic of Kenya

In the High Court at Kajiado

Election Appeal E001 of 2022

SN Mutuku, J

June 6, 2022

Between

Abdisalam Hassan Abdi

Appellant

and

Jemnyango Moses Kamalik

Respondent

Ruling

1. This Appeal was canvassed by way of written submissions. The background leading to this ruling is that the Appellant filed this appeal against the judgment of the Political Parties Disputes Tribunal on May 31, 2022. He also filed a Notice of Motion on the same date. The Notice of Motion was withdrawn to pave the way to hearing and determination of the Appeal due to short time within which the appeal was to be determined due to the timelines in registration of candidates for Member of County Assembly being June 7, 2022.

2. The Notice of Motion had been filed under Certificate of Urgency. The file was placed before me on May 31, 2022 for directions. The following day, 1st June 2022, was a National Holiday. I directed the Appellant to serve the Respondent and return to court on June 2, 2022 for directions.

3. On June 2, 2022, I directed the Appellant to file and serve the Record of Appeal and Submissions by close of the day that June 2, 2022 which was a Thursday. I directed the Respondent, upon service, to file and serve his Response by 4. 00pm on 3rd June 2022. This was a Friday. I scheduled judgment today June 6, 2022 at 2. 30pm.

4. By 4. 00pm on June 3, 2022, the Respondent had not filed his Response and Submissions. Upon receipt of the Record of Appeal and Submissions by the Appellant this court started working on the file to prepare judgment.

5. On June 6, 2022, the court convened for delivery of judgment at 3. 00pm. Before judgment was delivered, Mr. Shadrack Wambui, learned counsel for the Respondent moved the court with the following submissions.

Submissions 6. Counsel submitted that they had a Preliminary Point to raise before judgment was delivered. He reiterated the directions of the court and stated that the Appellant served the Record of Appeal and the Submissions on June 3, 2022 at 4. 30pm and were unable to have their submissions received by the court for consideration before judgment was written. He submitted that they sent the documents to the Kajiado High Court email address appearing on the Kenya Law which seemed faulty since the email kept on bouncing.

7. He submitted that he learned that the email was faulty. That he arrived in court at 7. 00am but he has been unsuccessful in filing his documents. He asked the court to admit the Response and submissions. He conceded coming to court late.

8. He further submitted that in the event the court was not inclined to admit the late filing of documents, then the court should consider listening to their arguments on a Preliminary Point that the Appeal by the Appellant is incompetent for failure to attach a decree of this court. He urged that a Preliminary Objection can be raised anytime before judgment is delivered.

9. In response to the submissions, Mr. Odindo told the court that he acted purely as directed by the court and that counsel for the Respondent has conceded that he was served with the documents as directed by the court. Mr. Odindo told the court that he was served with the Preliminary Objection but the same had not been filed in court.

10. I declined to grant the application by Mr. Shadrack Wambui and proceeded to deliver judgement. I directed the parties that I would give my reasons for declining to grant the application.

Determination 11. This court gave clear directions on what parties were to do to facilitate the expeditious disposal of this matter given the deadline of June 7, 2022. June 3, 2022 was a Friday. It was clear to this court that parties had to act promptly as directed to enable the court to sit and prepare the judgment over the weekend in order to deliver it on Monday June 6, 2022.

12. Counsel for the Respondent has a chance to raise the court of Friday 2022 before 4. 00pm the deadline for filing documents and plead his case to be allowed to file his documents later than 4. 00pm. Had this been done, I am sure this court, acting on information that he was served late, would have accommodated him before the close of business on Friday, the June 3, 2022. This was not done.

13. By Monday June 6, 2022, the judgment had been written and ready to be delivered at 2. 30pm. The Cause List for Monday, June 6, 2022 was heavy and this court sat in court up to 1. 50pm before taking lunch break. Indeed judgment was not delivered at 2. 30pm as scheduled due to the ripple effect of the late sitting.

14. Court orders ought to be strictly obeyed to enable the court serve court users. Failure to obey court orders leads to consequences. But parties are free to contest the orders and seek court’s intervention. This should not be done to prejudice the other party or to inconvenience the court.

15. It is for these reasons that I declined to allow the application by Mr. Shadrack Wambui, learned counsel for the Respondent.

DATED AND DELIVERED THIS 6TH DAY OF JUNE 2022 AT 16. 29PM.S. N. MUTUKUJUDGE