REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI

(Koome; CJ & P, Mwilu; DCJ & VP, Ibrahim, Wanjala & Njoki, SCJJ)

PETITION(APPLICATION) NO. E011 OF 2023

⎯BETWEEN⎯

KENYA AIRPORTS AUTHORITY.……………….………………. APPELLANT

⎯AND⎯

OTIENO, RAGOT & COMPANY ADVOCATES ……………...RESPONDENT

(Being an application to strike out Submissions, List of Authorities and Digest of

Authorities filed by the Petitioner)

Representation:

Mr. Karuti h/b for Mr. Munyu for the Appellant

(Iseme, Kamau & Maema Advocates)

Mr. Otieno David for the Respondent/Applicant

(Owiti, Otieno & Ragot Advocates)

RULING OF THE COURT

[1] UPON perusing the Notice of Motion application dated 29th September, 2023
by the respondent pursuant to Article 163(5) of the Constitution, Sections 3 and
21(2) of the Supreme Court Act, Rules 31(6) and 65 of the Supreme Court Rules,
2020 and all other enabling provisions of the law, seeking to strike out and expunge
from the record the submissions, list and digest of authorities all dated and filed 22nd
September, 2023 by the appellant; and

Petition No. E011 of 2023 Page 1 of 7

[2] UPON examining the grounds on the face of the application, the supporting
affidavit and further affidavit sworn on 29th September, 2023 and 19th October, 2023
respectively, by Otieno David, a Partner in the respondent’s law firm in which he
contends that: on 7th August, 2023 the Court’s Deputy Registrar directed the
appellant to file and serve submissions within 21 days; the appellant breached the
timelines and filed the submissions 25 days out of time without the leave of the Court
and without reference to the respondent; no explanation for the delay was given by
the appellant when the matter came up before the Hon. Deputy Registrar on 25th
September, 2023; and the appellant’s subsequent reasons for delay as stated in its
replying affidavit are unsupported by any evidence and are false;

[3] NOTING the respondent’s further arguments that: the rules of procedure, case
management and the court’s directions serve a vital role in attainment of justice; the
sequence of filing or making submissions is well established in the practice of law
with an appellant first filing its submissions, the respondent filing its response and
thereafter an appellant has an opportunity to file a rejoinder restricted to matters
arising in the response; it is prejudicial to the respondent who had to file
submissions without the benefit of addressing the appellant’s submissions; the
appellant’s actions were discourteous and disrespectful to the Court, to the
respondent, and was deliberately intended to cause a delay in the finalization of the
petition;

[4] CONSIDERING the respondent’s submissions dated 29th September, 2023

and its supplementary submissions dated 19th October, 2023 where it contends that:
Article 159 of the Constitution provides for the principles that guide all courts in
Kenya in their exercise of judicial authority to include that justice shall not be
delayed; the appellant’s submissions and authorities remain unchallenged having
been filed after the respondent had filed its submissions, thus prejudicial to the
respondent’s fair trial right under Article 50(1) of the Constitution; the appellant
having obtained a stay of proceedings and execution from this Court, the respondent
continues to be exposed to suffering due to the devaluation of the Kenya shilling
while the appellant continues to benefit from the delay in conclusion of the matter;
and that it is highly irregular and presumptive to file documents out of time without

Petition No. E011 of 2023 Page 2 of 7

leave and thereafter seek the Court’s stamp of approval to deem them to be regularly
on record. The respondent cites this Court’s decisions in Okiya Omtata Okoiti &
3 others vs The Cabinet Secretary National Treasury & Planning and
10 others SC Application No. E029 of 2023, Senate & 3 others v Speaker of
the National Assembly & 10 others; Fund Board (Interested Party) (Petition
19(E027) of 2021) [2022] KESC 20 (KLR) Nicholas Kiptoo Arap Salat v IEBC
& 7 others and Edwin Harold Dayan Dande & 3 Others v Director of
Public Prosecutions & 2 others SC Petition No4(E005) of 2022 to buttress its
arguments; and

[5] CONSIDERING the appellant’s replying affidavit sworn on 11th October, 2023
by Martin Munyi and submissions dated 11th October, 2023 in which the appellant
opposes the application by stating that: the application is vexatious and
misconceived, intended to impede the expeditious determination of the petition of
appeal; the delay in filing the submissions was not inordinate; the delay was caused
by exigencies of work and was not intended to circumvent the interests of justice;
the appellant had not had sight of the respondent’s submissions by the time it filed
its submissions; the respondent has not demonstrated the prejudice it stands to
suffer if the submissions remain on record as it can be afforded the opportunity to
file submissions in rejoinder; Counsel for the appellant expressed remorse for the
belated filing of the submissions; and this Court should decline the invitation to sway
into a trajectory that defeats the fair, just and expedient determination of the
dispute;

[6] FURTHER considering the appellant’s contention that the Okiya Omtata
case (supra) is distinguishable from the instant case as it arose from an interlocutory
application under Rule 31 of the Supreme Court Rules which requires the application
to be filed alongside the submissions; the application aims to elevate procedural
issues over substantive questions of law which should not be countenanced; striking
out of pleadings is draconian and doing so will have an effect to the larger public;
the doctrine of proportionality calls for the prayer to strike out the impugned
documents to be disallowed, citing the Court of Appeal decisions in Cooperative
Merchant Bank Limited v George Fredrick Wekesa CA No. 54 of 1999,

Petition No. E011 of 2023 Page 3 of 7

Attorney General v Torino Enterprises Limited [2020]eKLR, John
Munuve Mati v Returning Officer Mwingi North Constituency,
Independent Electoral & Boundaries Commission & Paul Musyimi
Nzengu [2018]eKLR and this Court’s decision in Raila Amolo Odinga &
Another v Independent Electoral & Boundaries Commission & 2 others
[2017]eKLR; and

[7] TAKING INTO ACCOUNT the mention before the Hon. Deputy Registrar of
the Court on 7th August, 2023 when directions were issued for the appellant to file
its submissions within 21 days with the respondent having corresponding period to
file submissions thereafter, and the mention before the Hon. Deputy Registrar of
25th September, 2023 where it was noted that the appellant had failed to comply with
the timelines set for filing submissions;

[8] COGNISANT of the provisions of Section 21 of the Supreme Court Act which
grants this Court general powers to make any ancillary or interlocutory orders, and
Rule 65 of the Supreme Court Rules 2020 which empowers this Court to issue such
directions as may be appropriate where a provision of the Rules or practice
directions is not complied with, having regard to the gravity of the non-compliance
and the general circumstances of the case;

[9] FURTHER NOTING the provisions of Article 159 of the Constitution which
set out the guiding principles of the exercise of judicial authority which include that
justice shall not be delayed and shall be administered without undue regard to
procedural technicalities;
[10] WE HAVE CONSIDERED the application, responses and submissions filed
by the parties and NOW OPINE as follows:
i. This Court has in several of its decisions reiterated that compliance with
its orders and directions on filing and service of documents is imperative.
As we stated in the Okiya Omtatah case (supra) compliance with court
orders goes to the root of the rule of law as well as the dignity of the court.
ii. We note that from the directions issued by the Hon. Deputy Registrar on
7th August, 2023 the appellant ought to have filed and served its
submissions on or before 28th August, 2023. It was not until 22nd
Petition No. E011 of 2023 Page 4 of 7
 September, 2023 that the appellant filed its submissions online, and filed
its hardcopies on 25th September, 2023 thus delaying to comply with the
Court’s directions by over 25 days. As noted in Rule 12(1) of the Court’s
Rules, filing is deemed complete when the document is submitted both
electronically and physically.
iii. The appellant having failed to comply with the Court’s direction, the
respondent proceeded to file its submissions online on 22nd September,
2023 aware of the impending mention to confirm compliance on 25th
September, 2023. The delay in compliance by the appellant was therefore
prejudicial to the respondent who was deprived the opportunity to respond
to the appellant’s submissions. Upon exhaustion of the timelines, the Hon.
Deputy Registrar proceeded to certify the matter as ready for hearing.
iv. Guided by this Court’s decision in Independent Electoral &
Boundaries Commission -v- Jane Cheperenger & 2 others SC
Petition No.5 of 2016 [2018] eKLR where we underscored the importance
of complying with Court orders and given directions, every party has an
obligation to honour the Court’s directions. Whereas late filing of
submissions is not incurable, and this Court has discretion to allow such
late filing, the appellant has not moved the Court appropriately by way of
an application for extension of time to file the said documents, however, is
that fatal?
v. This Court is granted general powers to make any ancillary or interlocutory
orders by the provisions of section 21 of its Act. Similarly Rule 65 of the
Court’s Rules empowers the Court to issue such directions as may be
appropriate. The bottom line in all cases is for parties to litigation to
reasonably access justice.
vi. The consideration to bear in mind here is what prejudice has been suffered
by the respondent due to the applicant’s failure to timeously file its
submissions and whether the respondent can be facilitated to mitigate
such prejudice as may have been suffered. Conversely, would the applicant
be able to still argue their appeal without the submissions? The answer to
both enquiries, we find, are in the affirmative. At the hearing, the applicant

Petition No. E011 of 2023 Page 5 of 7

 can well argue their appeal orally. The respondent can always be granted
leave to file supplementary submissions in reply to the submissions by the
appellant which were filed out of time all in the interest of justice and to an
expeditious disposal of this litigation.
vii. Consequently, and under powers granted by section 21 of the Supreme
Court Act and Rule 65 of the Court’s Rules, we order that the late filed
submissions be admitted and deemed to have been filed within time. The
respondent is hereby granted 14 days therefrom to draw, file and serve
supplementary submissions.
viii. On the issue of costs, this Court in Jasbir Singh Rai & 3 other v
Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012 [2014]
eKLR held that costs follow the event. On this account and in the
circumstances, the appellant shall bear the costs of the respondents.
ORDERS
[11] Consequently, we make the following orders:

i. The respondent’s Notice of Motion dated 29th September, 2023

be and is hereby disallowed;
ii. The appellant’s submissions, list and digest of authorities all
dated 22nd September, 2023 and filed on 25th September, 2023
be and are hereby admitted as part of the record;
iii. The respondent be and is hereby granted fourteen (14) days
from the date of this ruling to draw, file and serve
supplementary submissions;
iv. The appellant shall bear the costs of the application.
It is so ordered.

DATED and DELIVERED at NAIROBI this 8th day of December, 2023.

…...………………………………………………………………
M.K. KOOME
CHIEF JUSTICE & PRESIDENT OF
THE SUPREME COURT OF KENYA

Petition No. E011 of 2023 Page 6 of 7

……..……..………….........…………… …….………….………………………………
P. M. MWILU M.K. IBRAHIM
DEPUTY CHIEF JUSTICE & VICE JUSTICE OF THE SUPREME COURT
PRESIDENT OF THE SUPREME COURT

…………………………………………………… ………………………………………………..
S.C. WANJALA NJOKI NDUNGU
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT

I certify that this is a true copy of the original

REGISTRAR,
SUPREME COURT OF KENYA

Petition No. E011 of 2023 Page 7 of 7