Nairobi, Kenya | URN | The Attorney General of Kenya, Paul Kihara Kariuki has asked the East African Court of Justice (EACJ) to dismiss an application by a Ugandan lawyer Male Mabirizi seeking to strike out their defense for having been submitted out of the stipulated time.
This is in the case filed against the Kenyan government by Mabirizi for banning importation of maize and chicken products from Uganda
The said case was filed on March 11, 2021 challenging the two directives, one issued on January 14, 2021, and another on March 5, 2021.
According to the Director General of Kenya Agriculture and Food Authority Kello Harsama, he directed the Commissioner Customs and Kenya Revenue Authority (KRA) to stop with immediate effect the importation of maize from Uganda and Tanzania saying that various studies had shown that they contained mycotoxins beyond the permitted levels.
Mabirizi in his application also challenged the January 14, 2021, internal memo where the Kenyan Director of Veterinary Services banned the importation of chicken cuts and eggs from the East African Community (EAC).
As a result, Mabirizi noted that the ban on the importation of goods from an EAC partner state is unlawful and infringes on the operational principles of the community which among others encourage free movement of goods, transparency, democracy and rule of law, account and equitable distribution of benefits.
As such, Mabirizi asked court to quash the directives and issue a permanent order restraining Kenya from implementing its directives on grounds of being illegal.
However, the Attorney General of Kenya filed its response containing part of its defense to the matter and served Mabirizi on May 3, 2021, eight days after the lapse of the stipulated 45 days within which to file and serve response.
As a result, Mabirizi filed an application asking the East African court to dismiss their response on grounds that it was filed out of the stipulated 45 days required by law.
He added that the Kenyan government did not apply for and obtain leave of court to serve him out of time and as such he was prejudiced and their actions amount to abuse of court process.
But in an affidavit sworn by a State Attorney Martin Munene from the State Law Office and Department of Justice in Kenya, the Nairobi administration contends that they were served with Mabirizi’s documents on March 11, 2021, and therefore the 45 days started to run from March 12, 2021 and expired on April 25, 2021.
According Munene, they filed a response on April 23, 2021, within the timelines of 45 days but unfortunately served Mabirizi on May 3, 2021, which was after the lapse of the 45 days.
“That the delay in serving the respondent’s response was occasioned by the fact that the office of the respondent/Kenyan Attorney General was temporarily closed to give room for fumigation in order to curb the spread of COVID-19 and therefore the office clerk could not access the filed documents on time to effect service,” reads the affidavit in part.
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Adding that, “the resumption and for the purpose of further curbing the spread of COVID-19, the structure of working was changed to rotation basis and it took time before the officers could settle which also incapacitated the serving of the response on time.”
According to the Government of Kenya, the rules of the East African Court state that a document may be expunged from the court record if for stance it may prejudice or delay the fair trial, is an abuse of court process or is scandalous. But to them, Mabirizi doesn’t show how he will be prejudiced if their defense is maintained on the court record.
As such, the Kenyan government wants the East African Court of Justice (EACJ) to use its inherent powers and allow its response because it has powers to extend the time any act is supposed to be done.
The court is yet to hear the application. The Kenyan government has since lifted the ban on maize but with stringent terms and conditions.