RESPONDENT’S PLEADINGS
7. The Respondent raised preliminary objections to the Applicant’s application on
the grounds that:
a. The Applicants have not produced any evidence of exhaustion of local
remedies or of the inordinate delay thereof as required under Rule 34 and
that local remedies have not been exhausted since the Applicants could have
applied for ex-parte judicial review orders or conservatory orders which can
be issued on the basis of written submissions only.
b. Rule 40 requires the Court to conduct a preliminary examination of its
competence and the admissibility of the application in accordance with
Articles 50 and 56 of the Charter;
c. Under Kenyan Law, Applicants may apply for ex-parte judicial review which is
not subject to inordinate delay;
d. Any aggrieved party may apply to the High Court for appropriate orders under
its Constitutional jurisdiction and obtain conservatory orders without any
inordinate delay;
e. Within Kenya’s adversarial system, the onus of filing and fixing dates for
hearing
and
prosecution
of
cases
rests
on
the
claimants/applicants/petitioners, and there is any procedural inhibitions to
expeditious hearing of cases;
f. The procedure for seeking relief under judicial review and constitutional
jurisdictions of the High Court does not require oral hearings and therefore
leads to expeditious determination;
g. There is a pending Application before the Commission which is yet to be
determined on admissibility and the merits and the Application against the
Respondent filed at the Court is contrary to the principle of complementarity
between the Commission and the Court.