Dari Limited & 5 others v East African Development Bank
The bottom line
#Supreme Court dismisses bid to strike out replying affidavit and rejects late additional evidence.
What this practically means
#The Supreme Court ruled that a respondent can choose how to respond to a petition. You cannot force them to use a specific format. The court also refused to allow new evidence because the applicants did not explain why they broke the rules earlier. Trying to add evidence after a previous rejection is like litigating in pieces. The application was dismissed, and costs will be decided later.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the replying affidavit by Justa Kiragu should be struck out
- 2.Whether the petitioners should be granted leave to adduce additional evidence
- 3.Whether the petitioners should be granted an opportunity to file a rejoinder
Key legal issues
#Whether the respondent's replying affidavit should be struck out for not responding to the petition as envisaged by rule 42 of the Supreme Court Rules.
The court held that rule 42 does not prescribe the form or content of a response, and the respondent was at liberty to choose the form of response. The prayer to strike out was premature and unmerited.
The court examined rule 42(1) which allows a respondent to file grounds of objection, an affidavit, or both. It found no requirement that the response must address the petition in a specific manner. The petitioners' proper remedy is to attack the contents during the hearing of the petition, not through a preliminary application.
Whether the petitioners should be granted leave to adduce additional evidence after their supplementary affidavits were struck out for procedural non-compliance.
The court declined leave, finding that the petitioners failed to explain their initial non-compliance with rule 26 and that the application was a belated afterthought to fill gaps in their case.
The court noted that the petitioners' supplementary affidavits were struck out on October 6, 2023 for want of procedure. The present application sought to re-introduce the same content. The court found no justification for the failure to follow rule 26 at the first instance and characterized the attempt as litigating in instalments.
Whether the petitioners should be granted an opportunity to file a rejoinder to the respondent's response.
The court disallowed the prayer because the petitioners did not heed the Deputy Registrar's directions on filing a rejoinder and did not seek extension of time or explain non-compliance.
The court noted that rule 42(2) mandates a petitioner to file a rejoinder within seven days of service of the response. The Deputy Registrar issued directions which the petitioners did not follow. The supplementary affidavits struck out were not intended as a rejoinder but were filed in response to a different application. The court found no basis to grant the prayer.
Legal principles established
#- A respondent is free to choose whether to file grounds of objection, an affidavit, or both in response to a petition.
- A party cannot dictate how a respondent files its response; challenge the content at the hearing, not through a preliminary application.
- A party seeking additional evidence must explain why they did not follow procedural rules at the first instance.
- A belated attempt to introduce evidence after an adverse ruling is impermissible litigating in instalments.
- A petitioner must file a rejoinder within seven days or seek an extension; failure without explanation loses the opportunity.
Court orders
#- 1.The notice of motion application dated October 26, 2023 and filed on October 27, 2023 be and is hereby dismissed.
- 2.Costs of the application shall abide the outcome of the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution of Kenya
Relief refused
#Striking out of the respondent's replying affidavit sworn by Justa Kiragu
The prayer to strike out the replying affidavit is premature and unmerited; the petitioners are at liberty to attack the contents during the hearing of the petition.
Leave to adduce additional evidence by way of affidavits of Raphael Tuju, Edward Okundi and Amos Aketch
The petitioners have not explained or justified their failure to adhere to rule 26 at the first instance; the attempt is a belated afterthought to fill gaps in their case.
Opportunity to file a rejoinder to the respondent's response
The petitioners did not heed the Deputy Registrar's directions on filing a rejoinder and have neither sought extension of time nor explained non-compliance.
Costs
Costs of the application shall abide the outcome of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As such we find the prayer to strike out the replying affidavit to be premature and unmerited.
Their attempt to seek leave to adduce additional evidence reeks of a belated afterthought with the objective of filling up gaps in its case.
This points to the inexorable conclusion that the prayer to file a rejoinder is disallowed.
The notice of motion application dated October 26, 2023 and filed on October 27, 2023 be and is hereby dismissed.
Costs of the application shall abide the outcome of the appeal.
Key timeline
#Practical implications
#Procedural flexibility and strict compliance
When responding to a petition, you have discretion on the form of response. Do not file preliminary applications to strike out a response; instead challenge its content at the hearing. For additional evidence, ensure you explain non-compliance at first instance to avoid being seen as litigating in instalments. Follow directions for rejoinders strictly or seek extension.
Avoid piecemeal litigation
If you are a party in a Supreme Court appeal, plan your case thoroughly from the start. Trying to introduce evidence after a procedural setback may be rejected as a belated attempt to fill gaps. Ensure you comply with all filing deadlines and directions to avoid losing opportunities to present your case.
Know your procedural rights
If you are involved in a Supreme Court appeal, you cannot force the other side to respond in a specific way. Also, if you miss the deadline to file a rejoinder, you must seek an extension and explain why. Otherwise, you lose that chance. Follow court rules carefully to protect your position.
Frequently asked questions
#Can a respondent choose how to respond to a petition in Kenya's Supreme Court?+
Yes, under rule 42 of the Supreme Court Rules, a respondent may file grounds of objection, an affidavit, or both. The court does not prescribe the form or content of the response.
What happens if you try to introduce additional evidence late in a Kenyan Supreme Court case?+
The court will likely reject it unless you explain why you did not follow the rules earlier. A belated attempt after an adverse ruling is seen as litigating in instalments and will be dismissed.
Can you strike out a replying affidavit in Kenya's Supreme Court?+
Not through a preliminary application. The proper way is to challenge the contents of the affidavit during the hearing of the main petition, not by a separate motion to strike out.
What is the deadline to file a rejoinder in Kenya's Supreme Court?+
Under rule 42(2), a petitioner must file a rejoinder within seven days of being served with the response. If you miss this deadline, you must seek an extension of time and explain the delay.
Cite this brief
#Cite this brief
Caselaw, "Dari Limited & 5 others v East African Development Bank", Case Analysis (2023). Petition E012 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/94/eng@2023-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.