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Abdiwab Abdullahi Ali V Governor Garissa County & 2 Others [2014] eKLR

Case Number: Constitutional Petition 8 of 2013 Date Delivered: 07 Jul 2014

Judge: Stella Ngali Mutuku

Court: High Court at Garissa

Parties: Abdiwab Abdullahi Ali v Governor Garissa County, Attorney General & Clerk County Assembly of Garissa

Citation: Abdiwab Abdullahi Ali V Governor Garissa County & 2 Others [2014] eKLR

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Antony Muli T/a Mutembei Mathoka General Store V Kilalani Farmers Co-operative Society Ltd [2014] eKLR

Case Number: ELC Civil Suit 467 of 2014 Date Delivered: 07 Jul 2014

Judge: Pauline Nyamweya

Court: Environment and Land Court at Nairobi

Parties: Antony Muli t/a Mutembei Mathoka General Store v Kilalani Farmers Co-operative Society Ltd

Citation: Antony Muli T/a Mutembei Mathoka General Store V Kilalani Farmers Co-operative Society Ltd [2014] eKLR

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Banking Insurance And Finance Union (BIFU) V Commercial Bank Of Africa Limited [2014] eKLR

Case Number: Cause 641 of 2013 Date Delivered: 07 Jul 2014

Judge: Monica Mbaru

Court: Employment and Labour Relations Court at Nairobi

Parties: Banking Insurance and Finance Union (BIFU) v Commercial Bank of Africa Limited

Citation: Banking Insurance And Finance Union (BIFU) V Commercial Bank Of Africa Limited [2014] eKLR

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L M J B V L K B [2014] eKLR

Case Number: Civil Suit 87 of 2007 (O.S) Date Delivered: 07 Jul 2014

Judge: Christine Wanjiku Meoli

Court: High Court at Malindi

Parties: L M J B v L K B

Citation: L M J B V L K B [2014] eKLR

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P M M V R S K [2014] eKLR

Case Number: Civil Appeal 3 of 2014 Date Delivered: 07 Jul 2014

Judge: Stella Ngali Mutuku

Court: High Court at Garissa

Parties: P M M v R S K

Citation: P M M V R S K [2014] eKLR

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Augusto Arduin V Saraf Limited [2014] eKLR

Case Number: Civil Suit 30 of 2012 Date Delivered: 07 Jul 2014

Judge: Christine Wanjiku Meoli

Court: High Court at Malindi

Parties: Augusto Arduin v Saraf Limited

Citation: Augusto Arduin V Saraf Limited [2014] eKLR

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Stanley Kaumbuthu V Esther Kathiri [2015] eKLR

Case Number: Civil Appeal 119 of 2013 Date Delivered: 07 Jul 2014

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Stanley Kaumbuthu v Esther Kathiri

Citation: Stanley Kaumbuthu V Esther Kathiri [2015] eKLR

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Robai Waswa V Judith Walukana [2014] eKLR

Case Number: Civil Appeal 145 of 2010 Date Delivered: 07 Jul 2014

Judge: Alfred Mabeya

Court: High Court at Bungoma

Parties: Robai Waswa v Judith Walukana alias Wanyonyi

Citation: Robai Waswa V Judith Walukana [2014] eKLR

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Joseph Mandu Soita V Family Bank Ltd Bungoma [2014] eKLR

Case Number: Hccc 5 of 2014 Date Delivered: 07 Jul 2014

Judge: Alfred Mabeya

Court: High Court at Bungoma

Parties: Joseph Mandu Soita v Family Bank Ltd Bungoma

Citation: Joseph Mandu Soita V Family Bank Ltd Bungoma [2014] eKLR

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Republic V Diana Salim Suleiman [2014] eKLR

Case Number: Criminal Case 23 of 2014 Date Delivered: 07 Jul 2014

Judge: Edward Muthoga Muriithi

Court: High Court at Mombasa

Parties: Republic v Diana Salim Suleiman

Citation: Republic V Diana Salim Suleiman [2014] eKLR

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Priscilla Nduta Kairu & 3 Others V Keziah Njeri Gachanja & Another [2014] eKLR

Case Number: Civil Case 194 of 2011 Date Delivered: 04 Jul 2014

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Priscilla Nduta Kairu, Waithira Karanja, Peris Wambui & Henry Njoroge Kamande All Training as Excel Bamboo Preparatory School v Keziah Njeri Gachanja & D K Mwangi Training as Kenya Shield Auctioneers

Citation: Priscilla Nduta Kairu & 3 Others V Keziah Njeri Gachanja & Another [2014] eKLR

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Filbert Korir V Republic [2014] eKLR

Case Number: Criminal Appeal 25 of 2013 Date Delivered: 04 Jul 2014

Judge: Joseph Kiplagat Sergon

Court: High Court at Kericho

Parties: Filbert Korir v Republic

Citation: Filbert Korir V Republic [2014] eKLR

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Joao Soares V Tuegest Guerma & Another [2014] eKLR

Case Number: Cause 689 of 2012 Date Delivered: 04 Jul 2014

Judge: Maureen Onyango Atieno

Court: Employment and Labour Relations Court at Nairobi

Parties: Joao Soares v Tuegest Guerma & another

Citation: Joao Soares V Tuegest Guerma & Another [2014] eKLR

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Samuel Kirubi Njuki V Margaret Wangari Macharia [2014] eKLR

Case Number: E.L.C.14 of 2014 Date Delivered: 04 Jul 2014

Judge: Antony Ombwayo

Court: High Court at Nyeri

Parties: Samuel Kirubi Njuki v Margaret Wangari Macharia

Citation: Samuel Kirubi Njuki V Margaret Wangari Macharia [2014] eKLR

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Emily Chepkoech Alias Emily Chepkoech Chumo V Priscilla Malit [2014] eKLR

Case Number: Succession Cause 66 of 2009 Date Delivered: 04 Jul 2014

Judge: Joseph Kiplagat Sergon

Court: High Court at Kericho

Parties: Emily Chepkoech Alias Emily Chepkoech Chumo v Priscilla Malit

Citation: Emily Chepkoech Alias Emily Chepkoech Chumo V Priscilla Malit [2014] eKLR

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Samuel Davis Kirundi Muraya & 14 Others V Peter Kigo & 4 Others [2014] eKLR

Case Number: Civil Case 198 of 2012 Date Delivered: 04 Jul 2014

Judge: Antony Ombwayo

Court: Environment and Land Court at Nyeri

Parties: Samuel Davis Kirundi Muraya & 14 others v Peter Kigo & 4 others

Citation: Samuel Davis Kirundi Muraya & 14 Others V Peter Kigo & 4 Others [2014] eKLR

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Kenya Building, Construction, Timber, Furniture & Allied Industries Employees Union V Morris And Company (2004) Limited [2014] eKLR

Case Number: Cause 120 of 2007 Date Delivered: 04 Jul 2014

Judge: James Rika

Court: Employment and Labour Relations Court at Nairobi

Parties: Kenya Building, Construction, Timber, Furniture & Allied Industries Employees Union v Morris and Company (2004) Limited

Citation: Kenya Building, Construction, Timber, Furniture & Allied Industries Employees Union V Morris And Company (2004) Limited [2014] eKLR

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Dinah Limo V Jonah Kipkorir Limo [2014] eKLR

Case Number: Civil Case 124 of 2004 Date Delivered: 04 Jul 2014

Judge: Lucy Waithaka

Court: High Court at Nakuru

Parties: Dinah Limo v Jonah Kipkorir Limo

Citation: Dinah Limo V Jonah Kipkorir Limo [2014] eKLR

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Francis Mwaniki Ngumba ) & Another V Thomas Ngumba Wamai [2014] eKLR

Case Number: Civil Case No.191 Of 2012 Date Delivered: 04 Jul 2014

Judge: Antony Ombwayo

Court: Environment and Land Court at Nyeri

Parties: Francis Mwaniki Ngumba ) & Stanley Wachigo Ngumba) v Thomas Ngumba Wamai

Citation: Francis Mwaniki Ngumba ) & Another V Thomas Ngumba Wamai [2014] eKLR

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Jacinta Wangari Njoroge & 4 Others V Sarova Hotels Ltd [2014] eKLR

Case Number: Cause 1806 of 2013 Date Delivered: 04 Jul 2014

Judge: Maureen Onyango Atieno

Court: Employment and Labour Relations Court at Nairobi

Parties: Jacinta Wangari Njoroge, Dickson Kiatu Musyimi,Samson Mutunga Mutua,Stephen Waweru Gachango & James Oburu v Sarova Hotels Ltd Wrongly Sued as the Sarova Stanley

Citation: Jacinta Wangari Njoroge & 4 Others V Sarova Hotels Ltd [2014] eKLR

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Jackson Kimani Waweru & 5 Others V Attorney General & 3 Others [2014] eKLR

Case Number: Miscellaneous Application 8 of 2014 Date Delivered: 04 Jul 2014

Judge: Byram Ongaya

Court: Employment and Labour Relations Court at Nakuru

Parties: Jackson Kimani Waweru, Daniel Kagori Njuguna, Mary Wairimu Mwaniki (On Behalf of Benjamin Cheserek Chemengich – Deceased), David Karimi Marete, Patrick Gakobo Mathenge & Hassan Godana Bagaja v Attorney General, Commissioner of Police, Shadrack Mulanga & Municipal Council of Naivasha

Citation: Jackson Kimani Waweru & 5 Others V Attorney General & 3 Others [2014] eKLR

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Ecobank Kenya Limited V Attain Enterprses Limited & Another [2014] eKLR

Case Number: Civil Case 597 of 2012 Date Delivered: 04 Jul 2014

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Ecobank Kenya Limited v Attain Enterprses Limited & Rogam Investments Limited

Citation: Ecobank Kenya Limited V Attain Enterprses Limited & Another [2014] eKLR

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Edwin Erick Mangau V Kampala Coach Limited [2014] eKLR

Case Number: Cause 569 of 2013 Date Delivered: 04 Jul 2014

Judge: James Rika

Court: Employment and Labour Relations Court at Nairobi

Parties: Edwin Erick Mangau v Kampala Coach Limited

Citation: Edwin Erick Mangau V Kampala Coach Limited [2014] eKLR

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Evans Njokabi Ngaire & 2 Others V Stanley Gachoki Ngaire (Alias) (Substituted By James Gichangi Gachoki) [2014] eKLR

Case Number: Civil Case 312 of 1983 Date Delivered: 04 Jul 2014

Judge: Antony Ombwayo

Court: Environment and Land Court at Nyeri

Parties: Evans Njokabi Ngaire, Joseph Murage & Nahashon Githinji Ngaire v Stanley Gachoki Ngaire (Alias) (Substituted By James Gichangi Gachoki)

Citation: Evans Njokabi Ngaire & 2 Others V Stanley Gachoki Ngaire (Alias) (Substituted By James Gichangi Gachoki) [2014] eKLR

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Nicholas Kiptoo Arap Korir Salat V Independent Electoral And Boundaries Commission & 7 Others [2014] eKLR

Case Number: Application 16 of 2014 Date Delivered: 04 Jul 2014

Judge: Mohammed Khadhar Ibrahim, Smokin C Wanjala

Court: Supreme Court of Kenya

Parties: Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission, Wilfred Rotich Lesan, Robert Siolei County Returning Officer Bomet County, Kennedy Ochayo, Wilfred Wainaina, Patrick Wanyama, Mark Manzo & Abdikadir Sheikh

Citation: Nicholas Kiptoo Arap Korir Salat V Independent Electoral And Boundaries Commission & 7 Others [2014] eKLR

Supreme Court sets out principles to be considered in exercise of discretion to extend time for filing appeals

Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & 7 others

Supreme Court of Kenya

Application No. 16 of 2014

M. K. Ibrahim &   S. C. Wanjala, SCJJ

July 4, 2014

Reported by Phoebe Ida Ayaya and Maryconcepter Nzakuva

 

Brief Facts

The Applicant, one of the contestants in the 2013 General Elections for Bomet County Senatorial seat, brought the application seeking orders for extension of time limited for filing of Petition of Appeal and that the Petition of Appeal filed at the Supreme Court out of time to be deemed to duly filed.

The Applicant, aggrieved by the decision of the Court of Appeal on his election petition appeal, decided to seek further redress to the Supreme Court by filing an application in the Court of Appeal seeking certification that his case constituted matters of general public importance and that he be granted leave to appeal to the Supreme Court.

Issues:

  1. Whether the intended appeal raised any constitutional matters to warrant appeal as of right without certification.
  2. Whether the Supreme Court had jurisdiction to extend time to file an election petition appeal out of time.
  3. Whether the Applicant had laid satisfactory basis to warrant the Court to extent time to file the appeal.
  4. What was the position of the Court of Appeal application seeking certification and whether a letter to the Registrar was sufficient to withdraw an application before the Court of Appeal?

Election Law-election appeals-extension of time for filing election appeal -whether the Supreme Court had jurisdiction to extent time to file an election petition appeal out of time -whether the Applicant had laid satisfactory basis to warrant the Court to extent time to file the appeal-Supreme Court Rules, 2012, Rule 53.

Constitutional Law-Supreme Court-appeals from Court of Appeal to Supreme Court-certification of a Notice of Appeal raising matters of general public importance- whether the intended appeal raised any constitutional matters to warrant appeal as of right without certification-Constitution of Kenya, 2010, article 164(4).

Civil Practice and Procedure-leave to withdraw-application for leave to withdraw- whether a letter to the Registrar was sufficient to withdraw an application for certification before the Court of Appeal -Court of Appeal Rules (cap 9 Sub Leg), 2010, rule 52.

Held:

  1. Pursuant to rule 33(1) of the Supreme Court Rules, 2012, it was mandatory that an appeal could only be filed within 30 days of filing the notice of appeal. Under rule 53 of the same Rules, the Supreme Court could indeed extend time. However, it could not be gainsaid that where the law provided for the time within which something ought to be done, if that time lapsed, one needed to first seek extension of that time before he could proceed to do that which the law required.
  2. The Applicant, by filing an appeal out of time before seeking extension of time, and subsequently seeking the Court to extend time and recognize such ‘an appeal’, was  tantamount to moving the Court to remedy an illegality which the Court could not do and such a document was unknown in law.
  3. Where one intended to file an appeal out of time and sought an extension of time, the much he could do was to annex the draft intended petition of appeal for the Court’s perusal when making his application for extension of time; and not to file an appeal and seek to legalize it.
  4. Under the Supreme Court Rules, 2012, one did not need to seek and get certification before filing a Notice of Appeal. A Notice of Appeal was a primary document to be filed outright whether or not the subject matter under appeal was that which required leave or not.
  5. From the Notice of Appeal, it was clear that the Applicant expressed a general intention to appeal the Court of Appeal decision. He did not state that he intended to appeal as of right or on the basis that the matter involved matters of general public importance. Further, the same was to be filed pursuant to article 163(4) (a) of the Constitution.
  6. The Applicant intended to move the Court as of right where no leave was required. Whether, the intended appeal properly fell under the realm of the Court’s jurisdiction was a substantive matter to be decided in the main appeal, if and when filed. Thus, where a party moved the Court as of right, a respondent could not move to strike out such an appeal during the hearing of an application for extension of time. Such a respondent ought to wait until the intended appeal was properly filed.
  7. The Notice of Appeal having been filed within the 14 days of the decision of the Court of Appeal that was intended to be appealed against, and given that the Applicant sought to come to the Court as of right, there was no legal mandatory requirement for certification first and the same was proper.
  8. Whether or not the constitutional questions framed by the Applicant were indeed canvassed and determined by the Court of Appeal was a substantive question that rightly fell for determination during the hearing of the appeal if and when filed.
  9. The application for determination was for extension of time to file an appeal. Determining that the appeal did not involve constitutional issues would amount to a court deciding on a matter that was not before it. All that the Court needed to determine was whether the Applicant had a prima facie case that raised issues of constitutional interpretation and/or application.
  10. The intended appeal revolved around the application and interpretation of articles 81 and 86 of the Constitution of Kenya, 2010 on general principles for the electoral system and voting. The Applicant had also expressed an intention to invoke the Court’s jurisdiction under article 163(4) (a) of the Constitution of Kenya, 2010. Hence, the Applicant had established a prima facie case to approach the Court as of right.
  11. Time was of much essence in election matters where the people’s sovereign power to elect their legal representatives was involved. It was with that recognition that the Constitution provided for the time frames within which election matters had to heard and determined.
  12. A party could however, encounter some delay and the time within which he/she was to perform an act lapsed. At Common Law, equity developed in the courts of Chancery Division to check the excess of common law. If one showed that he had a bona fide cause of action and time had lapsed, but was constrained to pursue within time that cause, because of some compelling reasons, the courts of the Chancery Division could intervene and indulge such a person if established that he was not at fault.
  13. It was on that equitable under-pinning that courts in Common Law jurisdictions in exercise of their discretion now grant orders extending time. Extension of time had now been given statutory backing with various legislations providing courts with the power to extend time.
  14. Extension of time being a creature of equity, one could only enjoy it if he acted equitably: he who seeks equity must do equity. Hence, one had to lay a basis that he was not at fault so as to let time to lapse. Extension of time was not a right of a litigant against a court, but a discretionary power of the courts which litigants had to lay a basis where they sought courts to grant it.
  15. The Supreme Court by virtue of rule 53 of the Supreme Court Rules, 2012 had discretionary powers to extend time within which certain acts could be undertaken. This could be perceived by the use of the word “may” in crafting of the rule. This discretion was a very powerful tool which ought to be exercised with abundant caution, care and fairness; it ought to be used judiciously and not whimsically to ensure that the principles enshrined in the Constitution were realized.
  16. Discretion to extend time was indeed unfettered. It was incumbent upon the Applicant to explain the reasons for delay in making the application for extension and whether there were any extenuating circumstances that could enable the Court to exercise its discretion in favour of the Applicant.
  17.  The  court  ought to consider the following principles in exercising the discretion to extend time for filing an appeal:
  1. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the Court;
  2. A party who sought for extension of time had the burden of laying a basis to the satisfaction of the court;
  3.  Whether the court ought to exercise the discretion to extend time, was  a consideration to be made on a case to case basis;
  4.  Whether there was a reasonable reason for the delay, which ought to  be explained to the satisfaction of the Court;
  5. Whether there would be any prejudice suffered by the respondents if the extension was granted;
  6. Whether  the  application  had  been  brought  without  undue delay; and;
  7. Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.
  1. The Appellate Jurisdiction Act and the Court of Appeal Rules, 2010 provided for the mode and instances when a party could withdraw applications, civil appeals, criminal appeals and review. Rule 52 of the Court of Appeal Rules, 2010 dealt with withdrawals of applications, which allowed an applicant to at any time; informally apply to the Court for leave to withdraw the application.
  2. A party’s right to withdraw a matter before a court could not be taken way. A court could not bar a party from withdrawing his/her matter. All that the court could do was to make an order as to costs where it was deemed appropriate.
  3. The Applicant informally expressed his desire to withdraw the application vide a letter addressed to the Registrar and as such no parallel application was pending before the Court of Appeal. Indeed, the application at the Court of Appeal was withdrawn. Hence there was no abuse of the court process as there was only the present application before the Court of law for determination.

The purported Appeal struck out and expunged from the Court’s record; the time limited for filing of a Petition of appeal by the Applicant extended; the Applicant granted leave to file an appeal within 14 days from the date of the ruling; the Applicant to bear the respondents’ costs in the current application.

Cases
East Africa
1.Bell, Malcolm v Daniel Toroitich Arap Moi Application No 1 of 2013 –(Applied)
2.Jusab, Shabbir Ali v Annar Osman & another Civil Application No 1 of 2013 –(Applied)
3.Kaikai, Ayub Murumba v Town Clerk of Webuye County Council Civil Appeal (Application) No 107 of 2009 –(Applied)
4.Kiangoi v Waruru & 2 others [2010] 2 KLR 170 –(Applied)
5.Mathenge, Paul Wanjohi v Duncan Gichane Mathenge Civil Application No 50 of 2010 –(Followed)
6.Munya, Peter Gatirau v Dickson Mwenda Kithinji & 2 others Petition No 2B of 2014 –(Affirmed)
7.Munya, Gatirau Peter v Dickson Mwenda Kithinji & 2 others Application No 2 of 2014 –(Applied)
8.Munya, Peter Gatirau v Dickson Mwenda Kithinji & 2 others Application No 5 of 2014 –(Explained
9.Obado, Zacharia Okoth v Edward Akong’o Oyugi & 2 others Supreme Court Application No 7 of 2012 –(Applied)
10.Ochanda, John O v Telkcom Kenya Limited Motion No 25 of 2014 –(Followed)
11.Odinga, Raila & 2 others v Independent Elections and Boundaries Commission & 3 others Petition No 5 of 2013 –(Applied)
12.Steyn, Hermanus Phillipus v Giovanni Gnecchi- Ruscone Application No. 4 of 2012 –(Explained)
13.Sum Model Industries Limited v Industrial and Commercial Development Corporation Civil Application No 1 of 2011 –(Explained)
United Kingdom
1.United Arab Emirates v Abdelghafar & others [1995] IRLR 243 –(Applied)
2.Sayers v Clarke Walker (a firm) [2002] EWCA Civ 645 –(Explained)
United States
1.Silverbrand v County of Los Angeles 46 Cal 4 106 (2009) –(Applied)
Statutes
East Africa
1.Constitution of Kenya, 2010 articles 25(c); 27(1); 38; 48, 50; 81, 86; 87(1); 163(4)(a),(7); 259 –(Interpreted)
2.Court of Appeal Rules, 2010 (cap 9 Sub Leg) rules 52, 77(1) –(Interpreted)
3.Elections Act, 2011 (Act No 24 of 2011) section 85A –(Interpreted)
4.Supreme Court Act, 2011 (Act No 7 of 2011) sections 3,15(1)(2); 16(1)(2); 17; 18 –(Interpreted)
5.Supreme Court Rules, 2012 (Act No 7 of 2011 Sub Leg) rules 3(4); 9; 23; 30(2); 31; 32; 33(1); 53 –(Interpreted)
Advocates
1.Mr Mwenesi for the Applicant
2.Mr Yego for the 1st, 3rd -8th Respondents
3.Mr Paul Lilan for the 2nd Respondent

 

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John Mbugua & Another V Attorney General & 3 Others [2014] eKLR

Case Number: Petition 92 of 2013 Date Delivered: 04 Jul 2014

Judge: Isaac Lenaola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: John Mbugua & Stephen Omodia v Attorney General, Ministry of Justice, Independent Electoral & Boundaries Commission & Registrar of Political Parties

Citation: John Mbugua & Another V Attorney General & 3 Others [2014] eKLR

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In Re Estate Of Dishon Kyengo Musyimi (Deceased) [2014] eKLR

Case Number: Succession Cause 1103 of 2012 Date Delivered: 04 Jul 2014

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: In Re Estate of Dishon Kyengo Musyimi Alias Kyengo Musyimi (Deceased)

Citation: In Re Estate Of Dishon Kyengo Musyimi (Deceased) [2014] eKLR

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Oscar Murima Tsuma & Another V M A Jagani Auctioneers [2014] eKLR

Case Number: Cause 247 of 2014 Date Delivered: 04 Jul 2014

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Mombasa

Parties: Oscar Murima Tsuma & Julius Chirunga Maundu v M A Jagani Auctioneers

Citation: Oscar Murima Tsuma & Another V M A Jagani Auctioneers [2014] eKLR

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David Mugo Mwaniki V Njeru Ndambiri [2014] eKLR

Case Number: Civil Case 345 of 1996 Date Delivered: 04 Jul 2014

Judge: Antony Ombwayo

Court: Environment and Land Court at Nyeri

Parties: David Mugo Mwaniki v Njeru Ndambiri

Citation: David Mugo Mwaniki V Njeru Ndambiri [2014] eKLR

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In Re Estate Of Wanza Muli (Deceased) [2014] eKLR

Case Number: Succession Cause 270 of 2001 Date Delivered: 04 Jul 2014

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: In Re Estate of Wanza Muli (Deceased)

Citation: In Re Estate Of Wanza Muli (Deceased) [2014] eKLR

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Pyrethrum Board Of Kenya V Wokabi Wangombe [2014] eKLR

Case Number: Civil Appeal 38 of 2011 Date Delivered: 04 Jul 2014

Judge: Roseline Pauline Vunoro Wendoh

Court: High Court at Nakuru

Parties: Pyrethrum Board of Kenya v Wokabi Wangombe

Citation: Pyrethrum Board Of Kenya V Wokabi Wangombe [2014] eKLR

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Joseph Saguge Marwa V Republic [2014] eKLR

Case Number: Criminal Application 3 of 2014 Date Delivered: 04 Jul 2014

Judge: Erastus Mwaniki Githinji

Court: Court of Appeal at Kisumu

Parties: Joseph Saguge Marwa v Republic

Citation: Joseph Saguge Marwa V Republic [2014] eKLR

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Jayne Nyagoha Emisembe V Nairobi County Branch Of Kuppet [2014] eKLR

Case Number: Cause 2001 of 2013 Date Delivered: 04 Jul 2014

Judge: James Rika

Court: Employment and Labour Relations Court at Nairobi

Parties: Jayne Nyagoha Emisembe v Nairobi County Branch Of Kuppet

Citation: Jayne Nyagoha Emisembe V Nairobi County Branch Of Kuppet [2014] eKLR

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Bernard Oyugi Ombuti T/A Oyugi Ombui & Co. Advocates V Bureti Growers Savings & Credit Ltd [2014] eKLR

Case Number: Misc. Civil Application 47 of 2013 Date Delivered: 04 Jul 2014

Judge: Joseph Kiplagat Sergon

Court: High Court at Kericho

Parties: Bernard Oyugi Ombuti T/A Oyugi Ombui & Co. Advocates v Bureti Growers Savings & Credit Ltd

Citation: Bernard Oyugi Ombuti T/A Oyugi Ombui & Co. Advocates V Bureti Growers Savings & Credit Ltd [2014] eKLR

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Kenya Shoe And Leather Workers Union V Bata Shoe Company (K) Limited [2014] eKLR

Case Number: Cause 192 of 2008 Date Delivered: 04 Jul 2014

Judge: Mathews Nderi Nduma

Court: Employment and Labour Relations Court at Nairobi

Parties: Kenya Shoe and Leather Workers Union v Bata Shoe Company (K) Limited

Citation: Kenya Shoe And Leather Workers Union V Bata Shoe Company (K) Limited [2014] eKLR

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Hassan Nyanje Charo V Khatib Mwashetani & 3 Others [2014] eKLR

Case Number: Application 15 of 2014 Date Delivered: 04 Jul 2014

Judge: Jackton Boma Ojwang, Mohammed Khadhar Ibrahim

Court: Supreme Court of Kenya

Parties: Hassan Nyanje Charo v Khatib Mwashetani, Independent Electoral and Boundaries Commission, Juma Musa & Gideon Mwangangi Wambua

Citation: Hassan Nyanje Charo V Khatib Mwashetani & 3 Others [2014] eKLR

Supreme Court grants extension of time to file an appeal where the delay was caused by the court

Hassan Nyanje Charo V Khatib Mwashetani & 3 Others [2014]

In The Supreme Court of Kenya at Nairobi

Application No. 15 of 2014

M K Ibrahim ,J B Ojwang, SCJJ

July 4, 2014

Reported by Teddy Musiga and Getrude Serem

Brief facts

The applicant filed an application before the Supreme Court seeking extension of time to file an appeal to the Supreme Court pursuant to rule 33 of the Supreme Court Rules, 2012. The applicant alleged that he had been unable to lodge his appeal in time because of the Court of Appeal’s delay in delivering the ruling on certification of the matter as that of general public importance and also that the Court of Appeal had failed to furnish him certified proceedings to enable him to prepare the record of appeal inter alia. He therefore argued that the Supreme Court had jurisdiction to extend time to achieve the ends of justice, in discharge of its mandate under section 3 of the Supreme Court Act.

Issue

  1. Whether the Supreme Court had the jurisdiction to entertain an application for extension of time before leave had been granted for the Supreme Court to hear such matters.

Jurisdiction – appellate jurisdiction of the Supreme Court – extension of time for filing appeals to the Supreme Court – claim where the delay in filing the appeal was alleged to have been caused by the Court of Appeal by failing to furnish the applicant with certified copies of proceedings to lodge an appeal to the Supreme Court – Constitution of Kenya, 2010 article 163 (4)

Held:

 

  1. Appeals to the Supreme Court need not lie on the entirety of the issues arising in the lower Courts. What went to the Supreme Court on appeal, were disputes over constitutional interpretation or application, or over matters of general public importance. Thus, if such issues could be isolated from the general case heard by the lower Courts, then it was implausible to argue that one could not further distinguish the issues of constitutional relevance that clothed the Supreme Court with direct jurisdiction, from those requiring certification as matters of general public importance.

 

  1. The matter presented two varying public-interest considerations that required balancing by the Court. The first was the principle of timeliness in the resolution of election disputes, embodied in article 87 (1) of the Constitution and access to justice, embodied in article 48 of the Constitution. The delay in the prosecution of the case prejudiced the certainty of the political representation of the people of Lunga Lunga Constituency and the applicants’ right to access justice. It was clear that the blame lay squarely on the Court processes of generating proceedings.
  2. It would not have been in the interests of justice to turn away an applicant who had, prima facie, exercised all due diligence in pursuit of his cause, but was impeded by the slow-turning wheels of the Court’s administrative machinery. Though prejudice to the representation of the people of Lunga Lunga Constituency was to persist, it was due to no fault on the part of the applicant.
  3. It had become quite clear from recent decisions of the Supreme Court, that the domain of elections be it in respect of the Presidency, Senate, National Assembly or gubernatorial office entailed special considerations of priority in constitutional governance. It by no means came unexpectedly, that a dedicated regime of electoral law, built upon the broad principles, and the specific terms of the Constitution, together with the elaborative body of statutory and regulatory law, was well and truly evolved.
  4. The concept of timelines and timeliness had been upheld as a vital ingredient in the quest for efficient and effective governance under the constitution. However the court had to take cognizance of the eternal mandate of responding appropriately to individual claims, as dictated by compelling considerations of justice where the applicant had exercised all due diligence so as to move a court on electoral issue, but the mechanisms had shut the doors on him. When he lodged his complaint to the court for extension of time the court had to avail to him the requisite appeal papers. The sluggish motion of the judicial machinery enjoyed no constitutional privilege, as against the specific guarantees of the Bill of Rights.

Application for extension of time allowed.

 

Cases

East Africa

  1. Gatirau, Peter Munya v Dickson Mwenda Githinji & 2 others Petition No 2B of  2014 – (Followed)
  2. Joho & another v Shahbal & 2 others Petition No 10 of 2013 – (Mentioned)
  3. Munene, Wambui v Peter Gichuki King’ara & 2 others Petition No 7 of 2013 – (Mentioned)
  4. Odinga v Independent Electoral and Boundaries Commission & 3 others Petition No 5 of 2013 – (Mentioned)
  5. Wanjohi v Kariuki & 2 others Petition No 2A of 2014 – (Mentioned)

Statutes

East Africa

  1. Constitution of Kenya, 2010 articles 48,81(e)(ii); 87(1); 163(4)(a)(b) – (Interpreted)
  2. Court of Appeal Rules (cap 9 Sub Leg) rule 32 – (Interpreted)
  3. Election Act, 2011 (Act No 24 of 2011) section 63 – (Interpreted)
  4. Supreme Court Act (Act No 7 of 2011) section 3 – (Interpreted)
  5. Supreme Court Rules (Act No 7 of 2011 Sub Leg) rule 33 – (Interpreted)

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