Wakilii

Ayieyo and Another v Attorney General of the Republic of Kenya and Another (Application No.1 of 2024)

East African Court of Justice · [2025] EACJ 5 · 2025 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out Amended Record of Appeal arising from Appeal No. 1 of 2023
Decision
Application dismissed; main appeal to proceed to scheduling conference

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice dismissed an application to strike out an Amended Record of Appeal filed late by the Attorney General of Kenya. The Court held that sufficient reasons existed for the delay, including financial and human resource constraints, and that the procedural omissions did not go to the heart of the appeal or prejudice the applicants. The Court exercised its discretion to allow the appeal to proceed, with each party bearing its own costs.

Outcome

Application dismissed; main appeal to proceed to scheduling conference

Facts

The applicants filed a motion seeking to strike out the Amended Record of Appeal filed by the Attorney General of Kenya in Appeal No. 1 of 2023. The Court had previously ordered the Attorney General to file and serve the Amended Record of Appeal within 14 days to include the Secretary General of the East African Community as a party. The Attorney General filed the Amended Record 45 days late. The applicants argued that the delay was fatal, that amendments exceeded the scope of leave granted, that proper amendment procedures were not followed, and that the responding affidavit was defective because it was sworn by counsel on record. The Attorney General attributed the delay to severe financial and human resource constraints and argued that the omissions were procedural and did not prejudice the applicants or affect the substance of the appeal.

Issues

  1. Whether the Court should strike out the entire Record of Appeal in Appeal No. 1 of 2023.
  2. Who should bear costs of the Application.

Orders

  • The Application is hereby dismissed.
  • Appeal No. 1 of 2023 shall be listed for Scheduling Conference in the next session of the Court.
  • Each party shall bear its own costs.

Rules and key headnotes

Civil Procedure — Appeals — Record of Appeal — Late Filing — Sufficient Reasons
Where an appellant fails to file an amended record of appeal within the time prescribed by court order but demonstrates sufficient reasons such as financial and human resource constraints, and where the delay does not prejudice the other party or affect the substance of the appeal, the court may exercise its discretion to refuse an application to strike out the record of appeal.
Civil Procedure — Affidavits — Counsel Swearing Affidavit — Facts Within Own Knowledge
An affidavit sworn by counsel on record is not defective where counsel deposes only to facts within his own knowledge as the person responsible for the preparation and service of documents, and where there is no risk of counsel being called to abandon the bar and be subjected to cross-examination on contentious matters.
Civil Procedure — Costs — Discretion of Court — Delay Caused by Unsuccessful Party
Where an application to strike out an appeal is dismissed but the delay that necessitated the application was caused by the respondent to the application, the court may exercise its discretion to order that each party bear its own costs rather than awarding costs to the successful party.

Cases cited (1)

  • Attorney General of the Republic of Burundi v Secretary General of the East African Community and Another (Appeal No. 2 of 2019)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Ayieyo and Another v Attorney General of the Republic of Kenya and Another (Application No.1 of 2024) [2025] EACJ 5 (3 March 2025)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.