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.
The Attorney General of Kenya has
asked the East African Court of Justice 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 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.
also challenged the January 14th 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.
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 3rd 2021 eight
days after the lapse of the stipulated 45 days within which to file and serve
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 11th 2021 and
therefore the 45 days started to run from March 12th 2022 and expired on March
According Munene they filed a response
on April 23th 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.
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
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 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.