Circumstances in which the Supreme Court could determine an appeal on an interlocutory decision where the substantive matter had not been determined by the superior courts

Ananias N Kiragu v Eric Mugambi & 2 others

Civil Application 10 of 2019

Supreme Court of Kenya

DK Maraga, CJ & P; PM Mwilu, DCJ & VP; MK Ibrahim, SC Wanjala & NS Ndungu, SCJJ

February 7, 2020

Report by Sharon Sang & Kakai Toili

Jurisdiction - jurisdiction of the Supreme Court - appellate jurisdiction – appellate jurisdiction over an interlocutory decision - where the substantive matter had not been determined in the superior courts – what were the circumstances in which the Supreme Court could determine an appeal on an interlocutory decision where the substantive matter had not been determined in Superior Courts. – Constitution of Kenya, 2010, article 163(4) (a).

Civil Practice and Procedure – appeals – appeals from the Court of Appeal to the Supreme Court – grounds of appeal to the Supreme Court – matters of general public importance – where the Court of Appeal declined to adopt an alternative dispute resolution (ADR) award after the dispute had been referred to ADR by consent of the parties - whether the appeal could be considered as raising a matter of general public importance hence appealable to the Supreme Court – Constitution of Kenya, 2010, article 163 (4)(b).

Brief facts

The instant application sought a review of the Court of Appeal’s decision denying the applicant certification to appeal to the Supreme Court under the rubric of matter of general public importance. At the High Court, the applicant claimed ownership of the suit land and sought a perpetual injunction to restrain the respondents from continuing to trespass on it and vacant possession. Contemporaneous with the filing of that suit, the applicant applied for an interlocutory injunction to restrain the respondents from interfering with his access or entry on to the suit property. The High Court dismissed the applicant’s application and allowed the one by the respondents hence maintaining the prevailing status quo on the suit land.

The applicant appealed against the High Court’s ruling and when the appeal came up for hearing, the Court of Appeal referred the matter to an alternative dispute resolution forum, the National Supreme Council of Njuri Ncheke Ya Ameru Elders (Njuri Ncheke) by consent of the parties. In its award, the Njuri Ncheke decreed the suit land to the applicant and directed each of the respondents to give a he goat to their father (applicant) as compensation for exposing him to court ridicule contrary to the Ameru customs. The respondents contested that award, contending that it was biased and did not address pertinent issues they had raised. The Court of Appeal held that as the arbitration was not sanctioned by the court but was at the initiative of the parties with no consent to be bound by the resultant award, the court could not impose it on either party. Moreover, the Court of Appeal further held that, it was the High Court, which had jurisdiction to determine challenges to arbitral awards.

Aggrieved by that decision, the applicant sought certification by the Court of Appeal to appeal to the instant court. However, the Court of Appeal dismissed that application thus provoking the instant application.

Issues

i       What were the circumstances in which the Supreme Court could determine an appeal on an interlocutory decision where the substantive matter had not been determined by the superior courts?

ii      Whether refusal to adopt an alternative dispute resolution (ADR) award could be considered as a matter of general public importance appealable to the Supreme Court where the dispute had been referred to ADR by consent of the parties.

Relevant provisions of law

Constitution of Kenya, 2010

Article 163 – Supreme Court

(4) Appeals shall lie from the Court of Appeal to the Supreme Court –

a)   as of right in any case involving the interpretation or application of this constitution; and

b)   in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5)

(5) A certification by the Court of Appeal under clause (4) (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.

Held

1.    As a general rule, the Supreme Court did not entertain appeals on interlocutory decisions where the substantive matter was pending before the superior courts save where the appeal was not only on a substantive determination by the Court of Appeal of a constitutional question, but also on an issue that had been canvassed right through from the High Court to the Court of Appeal even though the substantive matter was pending before the High Court.

2.    The issue canvassed before the High Court was an application for an interlocutory injunction. There was no substantive determination by the Court of Appeal or even the High Court of a constitutional question. Moreover, the Court of Appeal’s refusal to adopt an ADR award by Njuri Ncheke was a private matter between the parties and did not satisfy the criteria of a matter of general public importance.

Application dismissed; respondents shall have the costs of the application.

Supreme Court allows a review application against a deputy registrar’s decision to decline to admit pleadings.

Okiya Omtatah Okoiti & another v Attorney General & another

Civil Application No 1 of 2019

Supreme Court of Kenya

I Lenaola, J

December 20, 2019

Reported by Beryl Ikamari

Jurisdiction - jurisdiction of the Supreme Court - review jurisdiction - review application against a decision of the deputy registrar of the Supreme Court - whether the Supreme Court had jurisdiction to review a decision by the deputy registrar to decline to admit pleadings - Supreme Court Rules, 2012, rules 4A(1)(b), 4A(2) & 7E(2).

Statutes – subsidiary legislation - interpretation of subsidiary legislation - interpretation of rule 4A(1)(b) of the Supreme Court Rules, 2012 - requirements relating to a deputy registrar's decision to decline to admit pleadings for non-compliance with the law - giving of reasons for the decision -  effect of failure to give reasons that were sufficiently detailed - Supreme Court Rules, 2012, rules 4A(1)(b), 4A(2) & 7E(2).

Brief facts

The applicants sought a review of the deputy registrar's decision to decline to admit pleadings. They said that the decision was a political one and that it was meritless, unreasonable, arbitrary and offensive. They also stated that it was a decision made contrary to the rules of natural justice and in violation of the applicants' rights to access to justice.

Issues

1. Whether the Supreme Court had jurisdiction to review a decision by its deputy registrar to decline to admit pleadings.
2. Under what circumstances would the Supreme Court review a decision by its deputy registrar to decline to admit pleadings?

Held

1. Under rule 4A(1)(b) of the Supreme Court Rules, 2012 the role of the registrar included declining to admit pleadings that were not in accordance with the Constitution, the Supreme Court Act, the relevant rule or the court's Practice Directions for filings. Under rule 4A(2) of the Supreme Court Rules, 2012, a party aggrieved by the registrar's decision to decline to admit pleadings could seek a review of that decision before  a single judge of the Supreme Court. Therefore the Supreme Court had jurisdiction to hear and determine a review application against the registrar's decision.
2. The registrar's role in declining to admit pleadings that did not conform to the law was a role that could be referred to as a case management or administrative role of the registrar. Under rule 4A(1)(b) of the Supreme Court Rules, 2012, the registrar's role was limited to declining to admit documents that were yet to be filed and were therefore not on record. That role was similar to the role of the registrar provided for in rule 7E(2) of the Supreme Court Rules, 2012.
3. The difference between rule 4A(1)(b) and 7E of the Supreme Court Rules, 2012, was that rule 7E provided a remedy for documents that did not comply with the Supreme Court Act or the Supreme Court Rules; it allowed the registrar to issue an order to rectify the pleadings in order to bring them into conformity with the Act or Rules. Since the word 'may' was used in the Rules, the powers of the registrar to order for rectification were discretionary. Rule 4A(1)(b) of the Supreme Court Rules, 2012, was worded in strict terms and it did not provide for such a discretion.
4. Under rule 4A(1)(b) of the Supreme Court Rules, 2012, pleadings would be declined where they were not in accordance with the Constitution, the Supreme Court Act, the relevant Rules or Practice Directions. In making the decision, it was necessary for the deputy registrar to make specific reference to parts of the Constitution and the Supreme Court Act which the pleadings did not comply with. There was a failure to give such specifics in the registrar's decision.
5. In making the decision, the deputy registrar was to be cautious in ensuring that the reasons given for the decision could clearly and specifically be distinct from a decision on the merits of the pleadings as opposed to a mere administrative action that could lead to injustice.

Application allowed with no order as to costs.

The Court of Appeal has jurisdiction to review its decisions.

Manchester Outfitters (Suiting Division) Ltd (now known as King Wollen Mills Ltd) & another v Standard Chartered Financial Services Ltd & 2 others

Petition No 6 of 2016

Supreme Court of Kenya

DK Maraga, CJ & P, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ

December 20, 2019

Reported by Beryl Ikamari

Jurisdiction - jurisdiction of the Supreme Court - appellate jurisdiction - matters of constitutional interpretation and application - whether the Supreme Court had jurisdiction to hear and determine an appeal lodged against a review decision of the Court of Appeal to question whether the Court of Appeal had jurisdiction to review its decisions.

Jurisdiction - jurisdiction of the Court of Appeal - jurisdiction to review decisions - overriding objective principles - whether the Court of Appeal had jurisdiction to review its decisions.

Brief facts

The petitioners filed a suit, HCCC No. 5002 of 1990, to challenge the appointment of the 1^st and 2^nd respondents as receiver managers under a debenture. They also challenged the validity of the debenture and securities that formed the basis of the appointment. The petitioners stated that the appointments were done in bad faith and for improper motives and they also constituted a breach of an agreement. The 1^st respondent filed a defence and counterclaim in which it stated that the 2^nd respondent was lawfully appointed as receiver manager pursuant to a debenture dated April 5, 1982. Under that debenture, the 2^nd and 3^rd respondents claimed Kshs. 2,337,161.75 and interest thereon at 10% per annum being their expenses for services rendered. The High Court dismissed the suit and allowed the counterclaim as filed by the 1^st and 2^nd respondents.

The 1^st and 2^nd Petitioners moved to the Court of Appeal and filed Civil Appeal No. 88 of 2000. They sought the setting aside of the High Court judgment or alternatively, orders for re-hearing of the suit before a different High Court judge. While the appeal was pending, the respondents sold off the 1^st and 2^nd petitioners’ assets in order to recover the 1^st respondent's funds. Via a majority decision, the Court of Appeal allowed the appeal and awarded the 1^st petitioner Kshs. 251,000,000 plus interest at 14% per annum from August 1, 2002, which was to be paid within 30 days of the judgment. The award of damages was based on a valuation report admitted to the court de bene esse by the 1^st petitioner's counsel.

The respondents sought redress before the COMESA Court of Justice. They argued that the Court of Appeal acted in excess of its jurisdiction and violated the respondents' right to be heard but they withdrew the matter from that court on July 20, 2006.  On August 18, 2006, the respondents filed Civil Application No. NAI 224 of 2006 which sought the setting aside of the Court of Appeal's orders of October 4, 2002. The basis of the application was alleged bias in the case of one judge. The said judge, while serving as an advocate, had received instructions from the petitioners but he declined them. The Chief Justice removed him from a bench involving the same parties and subject matter. The Court of Appeal, in a ruling delivered on April 8, 2016 gave orders for it to hear the appeal (Civil Appeal No 88 of 2000) afresh.

The 1^st and 2^nd petitioner lodged a Supreme Court appeal in which they questioned whether the Court of Appeal had residual jurisdiction to re-open and re-examine a concluded appeal. They sought orders for the 2002 judgment in Civil Appeal No. 88 of 2002 to be restored.

Issues

1. Whether the Supreme Court had jurisdiction to hear and determine an issue, about whether the Court of Appeal could review its decisions, as a matter of constitutional interpretation and application.
2. Whether the Supreme Court had jurisdiction to hear and determine an appeal lodged against a ruling of the Court of Appeal which entailed a review decision made after the delivery of the Court of Appeal's judgment.
3. Whether the Court of Appeal had jurisdiction to review its decisions.

Held

1. The jurisdiction of a court had to have its basis on the Constitution or legislation or both. The court could only exercise jurisdiction as conferred on it by the Constitution or other written law. It could not arrogate to itself jurisdiction exceeding that which was conferred upon it by the law. Jurisdiction was not capable of being expanded through judicial craft or innovation.
2. The issues raised by the 1^st and 2^nd petitioners had to fall within the ambit of constitutional application or interpretation. For the Supreme Court to exercise jurisdiction, the petitioners had to show that the gist of the cause at the Court of Appeal and that court's reasoning and conclusions that lead to the determination of the cause, put in context, could properly be said to have taken a trajectory of constitutional interpretation or application. The petitioners would have to be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter.
3. The subject of appeal was not a Court of Appeal judgment but a Court of Appeal ruling in which the court accepted an invitation to review its own judgment. The issue to be determined at the Supreme Court was whether the Court of Appeal properly invoked jurisdiction to review its judgments. It was an issue addressed by the Court of Appeal but it had not been settled by the Supreme Court. The Supreme Court had jurisdiction to interrogate the issue raised and to give directions to the Court of Appeal on the exercise of its review jurisdiction.
4. Each case had to be evaluated on its own facts. Where a moment to settle novel jurisdictional issues arose, as a constitutional court, the Supreme Court had to rise to the occasion and invoke its constitutional mandate and give direction.
5. Despite the fact that the appeal related to a post-judgment ruling of the Court of Appeal, the unique circumstances of the case were such that it was appropriate for the Supreme Court to assume jurisdiction and determine the issue.
6. There were two divergent views as to whether the Court of Appeal could review its decisions. There was one on the principle of finality of litigation which was based on public interest and the need for stability and consistency in law. The preposition on the principle of finality did not support reviews of decisions by the Court of Appeal. The second position was on the justice principle which favoured limited review predicated on the basis that the object of litigation was to do justice.
7. Before the promulgation of the Constitution of Kenya 2010, the Court of Appeal was the final court in the hierarchy of courts. It did not have residual jurisdiction to review or sit on appeal on its own matters. Since 2010, the Court of Appeal expressed the wherewithal to exercise inherent jurisdiction to review its decisions.
8. The Supreme Court had jurisdiction to review its decisions under certain conditions and it would be absurd that the Court of Appeal, should not, in appropriate circumstances exercise the same review power. Overriding objective principles were an additional tool to further the cause of justice. The Court of Appeal had jurisdiction to re-open, re-hear and re-determine decisions previously determined by it.
9. There was no justifiable fault in the decision of the Court of Appeal to re-open and hear afresh the matter before it, on the basis of their consideration of facts and circumstances of the case.

Petition dismissed. Each party to bear its costs.

Cases

East Africa

 1. Asanyo, Geoffrey & 3 others v Attorney General Petition No 21 of 2015; [2018] eKLR –(Explained)

2.Benjoh Amalgamated Limited & Muiri Coffee Ltd v Kenya Commercial Bank Ltd [2014] 4 KLR 136–(Explained)

3.Communications Commission of Kenya & 5 others v Royal Media Services & 5 others Petition No 14 of 2014 [2014] eKLR –(Explained)

4.Criticos, Basil v Independent Electoral and Boundaries Commission & others Petition 22 of 2014; [2015] eKLR –(Distinguished)

5.In the Matter of the Interim Independent Electoral Commission [2011] 2 KLR 1-(Followed)

6.Joho & another v Shahbal & 2 others [2014] 1 KLR 111-(Followed)

7.Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] 3 KLR 199 –(Explained)

8.Munya v Kithinji & 2 others [2014] 3 KLR 36– (Followed)

9.Nduttu & 6000 others v Kenya Breweries Ltd & another [2012] 2 KLR 804 –(Followed)

10.Nguruman Ltd v Shompole Group Ranch & another Civil Application 90 of 2013(Ur 60/2013); [2014] eKLR-(Explained)

11.Outa, Fredrick Otieno v Jared Odoyo Okello & 3 others Petition 6 of 2014; [2017] eKLR –(Explained)

12.Rai & 3 others v Rai Estate & 4 others [2013] 2 KLR 253-(Explained)

13.Rai, Jasbir Singh & 3 others v Tarlochan Singh Rai & 4 others Civil Application No NAI 307 of 2003; [2004] eKLR  – (Followed)   

14.RMM v BAM Civil Appeal 267 of 2011; [2015] eKLR –(Explained)

15.Somani v Shirinkhanu (No 2) [1971] EA 79 – (Distinguished)

16.Teachers Service Commission v Kenya National Union of Teachers & 3 others Application No 16 of 2015; [2015] eKLR –(Distinguished)

Statutes

East Africa

1.Constitution of Kenya (Repealed) sections 64(1); 77(9); 79(9)-(Interpreted)

2.Constitution of Kenya, 2010 articles 163(4)(a); 164(1)(3) 262, 263,264; section 7 of the Sixth Schedule-(Interpreted)

3.Civil Procedure Act (cap 21) section 80 –(Interpreted)

4.Civil Procedure Rules (cap 21 Sub Leg) order 45 –(Interpreted)

5.Court of Appeal Rules, 1987 (Repealed) (cap 9 Sub Leg) rule 1(2) –(Interpreted)

6.Judicature Act (cap 8) sections 3, 3A –(Interpreted)

Advocates

Non-Mentioned

The appropriate remedy for curing a delay in filing an appeal is to seek a court order for extension of time for filing

Emmanuel Changawa Kombe v Mohamed Ali Sheikh & 4 others [2019] eKLR

Petition (Application) No. 5 of 2019

Supreme Court of Kenya

MK Ibrahim, JB Ojwang, SC Wanjala, N Njoki & I Lenaola, SCJJ

December 17, 2019.

Reported by Kakai Toili

Civil Practice and Procedure – appeals – timelines for filing appeals – where a party sought to file an appeal out of time – remedies available - what was the appropriate remedy for curing a delay in filing an appeal out of time - Supreme Court Act, 2011, section 23(2)(b); Supreme Court Rules, 2012, rules 21 and 23

Brief facts

The applicant filed the instant application seeking an extension of time to file an appeal and record of appeal out of time against the ruling and orders of the Court of Appeal. The appellant also prayed for the appeal and record filed to be deemed as properly on record, for leave to amend the appeal and for leave to file a supplementary record of appeal.

The applicant alleged that that the delay in filing the appeal and record of appeal was occasioned by circumstances beyond his control, namely;

1. the delay in getting certified copies of typed proceedings from the Court of Appeal within the stipulated 30 days from the date of filing the notice of appeal;
2. that on the last day on which the applicant would have filed the appeal, the court’s registry was closed and that upon inquiry, the applicant was informed that the registry staff members were attending a training in Naivasha;
3. that the registry remained closed until when the applicant lodged his appeal, but was advised to effect certain corrections thereto; and that wasn’t until when the appeal and record of appeal were finally presented and lodged, thus occasioning a six-day delay.

Issue

What was the appropriate remedy for curing a delay in filing an appeal out of time?

Held

The applicant had provided a plausible and reasonable explanation for the delay in filing of his appeal and record of appeal. The delay in the circumstances was not inordinate. The appropriate remedy for curing a delay in filing an appeal was to seek an order from the court, extending the time within which to file the same. The court took a dim view of applications asking the court to deem as properly filed, those appeals that had been lodged out of time.

Application partly allowed; costs to abide the cause.

Orders

1. Applicant to file the appeal and record of appeal within 14 days from the date of the ruling.
2. The purported appeal, to wit, Petition No. 5 of 2019 struck out and expunged from the court’s record.

Supreme Court declines to grant an extension of time where the delay was not explained to its satisfaction.

Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 2 others [2019] eKLR

Application 1 of 2014

Supreme Court of Kenya

SC Wanjala, SCJ

December 17, 2019

Reported by Mathenge Mukundi

Civil Practice and Procedure - applications - application for extension of time to file and serve a reference out of time against the taxation ruling and orders of the Supreme Court – limitation period for filing the application – where it was alleged that the delay was occasioned by the Supreme Court Registry failure to furnish the applicants with a copy of the taxation ruling and typed proceedings – whether the applicants explained the delay in filing and serving a reference against the taxation ruling and orders of the Supreme Court to its satisfaction - Supreme Court Rules, 2012, rules 21, 49 and 53.

Brief facts

The applicants sought an extension of time to file a reference against the taxation ruling and orders of the Supreme Court, submitting that the delay was occasioned by the Supreme Court registry’s delay in furnishing them with a copy of the typed proceedings.

The respondents contended that a copy of the ruling and typed proceedings were not required to file a reference on taxation under rule 49 (1) of the Supreme Court Rules. Even after being furnished with a copy of the ruling and typed proceedings, the applicants had not explained the 30-day delay in filing the taxation reference and that the application was an afterthought brought with an aim to delay the cause hence an abuse of court process.

Issue

 Whether the applicants explained the delay in filing and serving a reference against the taxation ruling and orders of the Supreme Court to its satisfaction.

Held

A copy of the ruling and typed proceedings were availed to the applicants on May 17, 2018, and yet, it was not until June 12, 2018, that they filed the application for extension of time. The applicants contended that the 27-day delay was the time it took them, to prepare the application for extension of time. Such an explanation was neither reasonable nor credible.

Application dismissed with costs to the respondents.

Jurisdiction to determine an appeal as of right where an applicant was not challenging the interpretation or application of the Constitution

Rosemary Wanja Mwagiru & 2 others v Attorney General & 3 others

Application No 20 of 2019

Supreme Court of Kenya

DK Maraga, CJ, MK Ibrahim, JB Ojwang’, SC Wanjala, & NS Ndungu, SCJJ

December 17, 2019

Reported by Ribia John

Jurisdiction – jurisdiction of the Supreme Court - appellate jurisdiction - matters of constitutional interpretation and application -  whether the Supreme Court had the jurisdiction to determine an appeal as of right where an applicant was not challenging the interpretation or application of the Constitution – Constitution of Kenya (2010), article 163(4)(a).

Civil Practice and Procedure – appeals – appeals to the Supreme Court – appeals as of right over matters of constitutional interpretation and application - application for extension of time - whether the Supreme Court could determine an appeal as of right where an applicant failed to obtain certified copies from the Court of Appeal in good time.

Brief Facts

The applicant sought for extension of time to file an appeal and record of appeal in the Supreme Court under article 163(4)(a) of the Constitution which provided that appeals would lie from the Court of Appeal to the Supreme Court as of right in any case involving the interpretation or application of the Constitution.

Issues

1. Whether the Supreme Court could determine an appeal as of right where an applicant failed to obtain certified copies from the Court of Appeal in good time.
2. Whether the Supreme Court had the jurisdiction to determine an appeal as of right where an applicant was not challenging the interpretation or application of the Constitution.

Relevant provisions of the law

Constitution of Kenya

Article 163(4)(a)

(4)       Appeals shall lie from the Court of Appeal to the Supreme Court—

(a)      as of right in any case involving the interpretation or application of this Constitution; and

Held

1. While the inability by an applicant to obtain certified copies from the Court of Appeal in good time, would in ordinary circumstances be reason enough for the extension of time by the Supreme Court, such reason, would not suffice in circumstances where, the intended appeal, was premised upon article 163(4)(a) of the Constitution. In such a scenario, the applicant had to satisfy the Court, that his intended appeal, was one involving the interpretation and/or application of the Constitution.
2.  Neither the High Court nor the Court of Appeal, engaged in any exercise of interpretation or application of article 157(6) and (10) of the Constitution. There was no basis upon which the application for extension of time could be sustained. To successfully invoke the provisions of article 163(4)(a) of the Constitution, an appellant had to be challenging the interpretation or application of the Constitution, which the Court of Appeal used to dispose of the matter in that forum. Such a party, had to be faulting the Court of Appeal, on the basis of such interpretation.

Application dismissed with costs.

Parties: Mwagiru & 2 others v Attorney General & 3 others

Case Number: Application No 20 of 2019

Court Station: Supreme Court of Kenya

Coram: DK Maraga, CJ, MK Ibrahim, JB Ojwang’, SC Wanjala, & NS Ndungu, SCJJ

Court History: (Being an application for extension of time to file an appeal against the Judgement and Orders of the Court of Appeal in Civil Appeal No 349 of 2013 (Karanja, Kiage & Sichale, JJ.A) delivered on 10^th May, 2019)

Cases

East Africa

1. Nduttu & 6000 others v Kenya Breweries Ltd & another 2012] 2 KLR 804 –(Followed)

2. Rai & 3 others v Rai & 4 others [2014] 2 KLR 253 –(Followed)

Statutes

East Africa

1. Constitution of Kenya, 2010 articles 157(6); 163 (4)(a) –(Interpreted)

2. Supreme Court Act, 2011 (Act No 7 of 2011) sections 21(2); 24(1) –(Interpreted)

3. Supreme Court Rules, 2012 (Act No 7 of 2011 Sub Leg) rules 21, 23, 26, 53 –(Interpreted)

Advocates

None Mentioned

Supreme Court allows an application seeking extension of time to file an appeal where the delay was occasioned by change of respondent’s advocates

Base Titanium Limited v County Government of Mombasa & another [2019] eKLR

Petition (Application) 22 of 2018

Supreme Court of Kenya

MK Ibrahim, JB Ojwang, SC Wanjala, SN Njoki, & I Lenaola, SCJJ

December 17, 2019

Reported by Moses Rotich

Civil Practice and Procedure – appeals – appeals to the Supreme Court – timelines for filing appeals – extension of time – extension of time to file a supplementary record of appeal – whether an applicant’s claim that it was unable to extract the formal order of the Court of Appeal and file it within the stipulated period of 15 days of filing a notice of appeal at the Supreme Court was a valid reason to allow extension of time – Supreme Court Act, 2011, section 21(2); Supreme Court Rules, 2012, rules 21(1) & 53

Brief facts

The application sought enlargement of time to file a supplementary record of appeal. The applicant had filed a record of appeal on time but without including the formal order being appealed against. The applicant contended that the delay in extracting and filing the order was occasioned by the 1^st respondent’s change of advocates immediately after receipt of the notice of appeal. Unaware of the change of advocates, the applicant stated that it sent a draft to the 1^st respondent’s previous advocates (on record) for their approval as was required by law in extracting a court order but received no response.  The 1^st respondent’s new advocates filed a notice of change advocates two days before the expiry of the specified 15 days within which a party could file a supplementary record of appeal without leave of court. The applicant asserted that it was practically impossible to agree on the wording of the order, extract and file the same within 2 days.

Issue

Whether an applicant’s claim that it was unable to extract the formal order of the Court of Appeal and file it within the stipulated period of 15 days of filing a notice of appeal at the Supreme Court was a valid reason to allow extension of time.

Held

The applicant made a compelling case for the court to exercise discretion in its favour in accordance with the provisions of section 21(2) of the Supreme Court Act, 2011 and rules 21, 23 and 53 of the Supreme Court Rules, 2012. The forty-eight day delay had been satisfactorily explained by the applicant. The inability by the applicant to obtain the approval of its draft order timeously compounded by the change of advocates by the 1^st respondent adequately explained the delay in filing the supplementary record of appeal.

Application allowed.

Orders:-

1. The applicant was ordered to file its supplementary record of appeal within 14 days from the date of judgment.
2. Costs would be in the cause.

The Supreme Court sets aside a consent judgment where one of the parties to the suit did not participate or acknowledge the consent.

Anne Waiguru & another v Martha Wangari Karua & 2 others [2019] eKLR

Petition (Application) No. 5 of 2018

Supreme Court of Kenya

DK Maraga, CJ & P; PM Mwilu, DCJ & VP; MK Ibrahim, JB Ojwang, SC Wanjala & N Njoki, SCJJ

December 17, 2019.

Reported by Kakai Toili

Civil Practice and Procedure – judgment – consent judgments – where a consent judgment was entered despite failure of one of the parties’ advocate to participate or acknowledge it - whether a consent judgment could be entered where one of the parties to the suit did not participate or acknowledge the said judgment

Brief facts

The Court of Appeal allowed the 1^st respondent’s appeal against a High Court judgment which had struck out her petition challenging the election of the 1^st appellant. The Court of Appeal remitted the petition to the High Court and ordered the latter to hear it de novo. Aggrieved by the Court of Appeal’s decision, the appellants moved to the court via Petition No. 5 of 2018(the petition). The appellants sought an order staying the judgment of the Court of Appeal pending the determination of their petition.

The 1^st respondent raised a preliminary objection to the petition arguing that the appellants had lost interest in prosecuting the petition, having failed to comply with the directions of the Deputy Registrar. The 1^st respondent also argued that the appeal would be in vain as the dispute had already been remitted to High Court for hearing. The court dismissed the application for stay with no orders as to costs as the same were to abide the cause. On July 6, 2018, the parties by consent agreed to withdraw the said petition of appeal. The consent to withdraw was recorded by the Deputy Registrar and subsequently adopted as the court’s judgment. The 1^st respondent filed the instant application seeking to set aside the consent of withdrawal. 

Issue

Whether a consent judgment could be entered, where one of the parties to the suit did not participate or acknowledge the said judgment.

Held

1. In view of the admission by counsel for the appellants to the effect that he had no instructions to hold brief for counsel of the 1^st respondent and in view of his averment that his statement was occasioned by human error, there could not have been any consent without the participation and acknowledgment of the 1^st respondent or her advocate. Had those facts been brought to the attention of the court, the court would not have adopted the non-consent as a judgment of the court. Had counsel for the 1^st respondent attended court on July 6, 2018, he would definitely have objected to the said consent. However, the court was not in a position to determine whether the consent was procured fraudulently. There was not much on record to aid the court in arriving at such a determination with the potential, of very grave consequences for counsel.
2. The preliminary objection was never determined in view of the fact that, it had been triggered by the petition which was never prosecuted.  In reality therefore, the petition was abandoned thus rendering the preliminary objection spent.

Application allowed; costs to be borne by the appellants.

Orders

1. For the avoidance of doubt, the consent judgment of July 6, 2018 was thereby set aside.
2. The notice of preliminary objection dated June 25, 2018 was spent.