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By Joel Mugabi

Perennial litigant Hassan Male Mabirizi has asked the East African Court of Justice to reject evidence filed by the Government of Kenya in a case he filed challenging a decision by Uganda’s eastern neighbor to ban poultry and maize imports.

Mabirizi argued that an affidavit filed by the Office of the Attorney General of Kenya was submitted out of time and ought to be struck out. Martin Munene, the State Counsel in the State Law Office and Department of Justice of Kenya, has admitted that indeed the Attorney General’s office filed its response out of time, but Mabirizi had failed to show how that had affected his pursuit for justice.

Rule 32(1) of the East African Court of Justice Rules of the Court 2019 provides that the respondent shall within forty-five (45) after being served with a notification of the reference file and serve upon the applicant a response.

According to Mabirizi, he served the reference and summary of evidence upon the respondent (Attorney General of Kenya) on March 11, 2021 and therefore the 45 days started to run from March 12 and expired on April 25, 2021.

Kenya filed their response on April 23, which was within the timelines of 45 days. However, Mabirizi was served on May 03, which was eight days after the lapse of the stipulated 45 days.

Rule 47 (1) of the East African Court of Justice Rules of the Court 2019,  provides that the Court may, on application of any party, strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document may prejudice or delay the fair trial of the case; is scandalous, frivolous or vexatious; or is an abuse of the Process of the Court.

In arguing why their affidavit should not be struck out, Munene has averred that Mabirizi has not concisely stated the grounds on which his application for the same is hinged on.

The office of Kenya’s Attorney General says that Mabirizi’s application “does not meet the threshold set under Rule 47 to warrant the striking out of the Response to the Reference” and that the Kampala-based lawyer has not stated the manner in which he was prejudiced by the late service since it is not until June 08, 2021 that he filed a reply to the Respondent’s Response to the Reference after being served on 3 May 2021.

“The Applicant has not provided grounds under which the late service delayed the fair trial of the matter considering that having filed the matter on March 11, 2021, the Applicant has not taken any steps towards requesting the Court for conferencing and hearing of the Reference,” further argued Munene.

“On June 08, 2021, the Applicant filed and served upon the Respondent a Reply to the Respondent’s response and as such the Applicant is estopped from seeking to strike out the Respondent’s Response on the ground that the Applicant waived his right to challenge the same upon filing of the Reply.”

In pleading with court to throw out Mabirizi’s application for the striking out of Kenya’s response, Munene explained why the Attorney General’s office had filed their affidavit out of time. “Failure to serve the Respondent’s response to the reference was not intended to delay the cause of justice but was as a result of an excusable mistake,” explained the Kenyan attorney.

“The delay in serving the Respondent’s response was occasioned by the fact that the office of the Respondent was temporarily closed to give room for fumigation in order to curb the spread of Covid19 and therefore the office clerk could not access the filed documents on time to effect service.”

But Mabirizi insists the admission by Kenya’s Attorney General’s office – that they filed out of time – alone is the enough to reject the affidavit. “They admit serving me out of time but claim that it was accidental. I maintain that their defence must be struck out and judgment entered in my favour,” he said. (For comments on this story, call, text or whatsapp us on 0705579994, 0779411734, 0200900416 or email us at





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