Adverse effects of the Covid 19 pandemic deemed to be reasonable explanation to warrant the enlargement of time to file an application of review before the Supreme Court.

William Olotch v Pan Africa Insurance Co. Limited

Civil Application No. 14 of 2020

Supreme Court of Kenya

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

September 4, 2020

Reported by Ribia John

Civil Practice and Procedure – review – review of Court of Appeal decision by the Supreme Court – inadvertent delay – application for enlargement of time - whether the adverse effects of the Covid 19 pandemic could be considered as reasonable explanation to warrant the enlargement of time to file an application of review before the Supreme Court – Supreme Court Act, section 21(3); Supreme Court Rules, rule 53.

Brief Facts

The applicant sought enlargement of time to file an application for review of the ruling of the Court of Appeal in Civil Application No. SUPP 15 of 2019. The applicant contended that the delay in filing the application for review was inadvertent, and was caused by the adverse effects posed by the Covid 19 pandemic, including restrictions on travel imposed by the Government and coupled with the challenges in accessing reliable internet

Issue

Whether the adverse effects of the Covid 19 pandemic could be considered as reasonable explanation to warrant the enlargement of time to file an application of review before the Supreme Court.

Held

1. The Supreme Court had the jurisdiction to consider and allow an application for leave to extend time as settled   as pronounced under section 21(3) of the Supreme Court Act and rule 53 of the Supreme Court Rules, 2012. The application by the applicant satisfied the principles set out by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral & Boundaries Commission & 7 others (2014) eKLR
2. The applicant had a reasonable and cogent explanation and adduced sufficient reasons for the inadvertent delay in filing his application for review of the Court of Appeal decision on certification in Civil Application No. SUPP 15 of 2019. The respondent had not shown what prejudice would be occasioned upon him if the applicant’s application was allowed.

Application allowed.

Orders

1. The Respondent was to file and serve its response to the originating motion within 14 days of service.
2. The Deputy Registrar was to issue any and further directions as could be deemed necessary in the circumstances.
3. Each party shall bear its own costs.

Section 200 of the Criminal Procedure Code that secured the rights of parties in a trial once a judicial officer hearing a case ceased to exercise jurisdiction over the matter applied to civil proceedings.

Hussein Khalid and 16 others v Attorney General & 2 others

Application No. 32 of 2019

Supreme Court of Kenya

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

September 4, 2020

Reported by Ribia John

Civil Practice and Procedure – review – a court reviewing its own decision –- what principles should a court consider when determining whether to review its own decision

Criminal Law – de novo hearings –- what principles ought to be applied during de novo trials - whether introducing new evidence after hearing was concluded was against the principles of de novo hearing – Constitution of Kenya, 2010 article 50(1); Criminal Procedure Code, section 200.

Statutes – interpretation of statutes – interpretation of section 200 of the Criminal Procedure Code – de novo hearings - whether section 200 of the Criminal Procedure Code sought to secure the rights of parties in a trial once a judicial officer hearing a case ceased to exercise jurisdiction over the matter applied to civil proceedings – Constitution of Kenya, 2010 article 50(1); Criminal Procedure Code, section 200.

Criminal Procedure Code – consent orders – suspension of a judicial officer – where a judicial officer was suspended before issuing judgment – where consent directions were ordered as a result of the suspension – where the judicial officer was reinstated before the consent orders were effected - whether consent directions issued after the suspension of a judicial officer still applied when the judicial officer was reinstated. 

Brief Facts

The applicants had been arrested for participating in demonstrations outside parliament gates dubbed, ‘occupy parliament’. They were detained and released on police bond and were required to report to the Chief Magistrate’s Court.  They requested for particulars to be availed before arraignment before the magistrate. They were each given a charge sheet containing three offences. The applicants contended that the charges lacked sufficient detail to enable them to plead. They therefore objected to plea taking and demanded that the same awaits supply of evidence and better particulars. The court, however, overruled the objection and ordered them to take plea. They filed a Constitutional appeal against the ruling. The High Court dismissed the appeal. They appealed to the Court of Appeal; the Court of Appeal similarly dismissed the appeal as unmerited. Aggrieved by the Court of Appeal decision, the applicants filed an application for review before the Supreme Court.

The application for review was heard on July 10, 2018. Judgment was reserved for delivery on notice. On March 29, 2019, Hon. JB Ojwang, SCJ, a member of the bench that had heard the appeal, was suspended. After Ojwang SCJ was suspended, the applicants sought for re-hearing of the appeal de novo. Directions were taken on May 9, 2019 before Hon. Lenaola SCJ.

The applicants faulted the Supreme Court for rendering its judgment after return of Hon. JB Ojwang , SCJ without setting aside the consent orders for de novo hearing the parties had recorded which allowed them to file a supplementary record to include in the courts record the Magistrates Courts record.

Issues

1. What principles should a court consider when determining whether to review its own decision.
2. Whether section 200 of the Criminal Procedure Code sought to secure the rights of parties in a trial once a judicial officer hearing a case ceased to exercise jurisdiction over the matter applied to civil proceedings.
3. What principles applied during de novo trials?
4. Whether introducing new evidence after hearing was concluded was against the principles of de novo hearing.
5. Whether consent directions issued after the suspension of a judicial officer still applied when the judicial officer was reinstated. 

Held

1. The Supreme Court had the jurisdiction to review its own decisions when;
   1. the judgment, ruling, or order was obtained by fraud or deceit;
   2. the judgment, ruling, or order was a nullity, such as, when the court itself was not competent;
   3. the court was misled into giving judgment, ruling, or order under a mistaken belief that the parties had consented thereto;
   4. the judgment or ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.
2. The power of review was exercised sparingly because a trial had several implications once a judgment was delivered; litigation had to come to an end; there was need for finality in court decisions; the court was functus officio after delivery of decision sought to be reviewed; and that review should not substantially alter the decision sought to be reviewed. The review window was to be exercised sparing and only deserving cases had to be allowed.
3. Under the de novo principle, once a judicial officer trying a matter ceased to exercise jurisdiction over a matter during pendency of trial, through transfer or other circumstances, his successor in jurisdiction gave the parties right to elect how to proceed. Either to proceed from where the hearing had reached or start de novo. A Judicial officer who heard the case was the one preferred to decide on it, unless parties elected otherwise, so that the accused was not prejudiced by having a successor in jurisdiction, who never had the opportunity to appreciate the evidence of witnesses by observing their demeanor, credibility, emotions and the like, deciding based on record, where such aspects of evidence could not be recorded in a detailed manner as required under section 199 Criminal Procedure Code (CPC).
4. Section 200 of the CPC entrenched the accused person’s rights to a fair trial as provided for under article 50(1) of the Constitution, and it applied to the High Court also in addition to Magistrates Courts.
5. De novo hearings should not be taken as an opportunity to fill in gaps noted during the hearing by bringing a new set of evidence for the repeat trial. A de novo hearing was a continuation of a trial and not a second trial.
6. During hearing of the appeal, the applicant was specifically asked why he had not availed the Magistrates Court record despite orders from the Registrar directing that and his reasons was that the court file was not available. The applicants’ complaint against the court’s decision was that it turned on the very same documents they intended to avail through a supplementary record. They averred that if they had been allowed to avail them as per the consent order, the court would have been afforded an opportunity to consider their contents and maybe arrive at a different decision. The applicants contended that the supplementary record was intended to mend a crucial gap they noted during the hearing to be a likely tipping point of the case if it were to be decided on the strength of the concluded hearing awaiting judgment.
7. Introduction of new evidence after hearing was concluded was against the principles of de novo hearing whether it was ordered in review or in revision jurisdiction of a court. It muted the trial continuation intention signaling a second trial. In some instances additional evidence could be tendered but in very exceptional circumstances. Unless hearing was concluded and judgment reserved, new evidence could be availed in course of a criminal trial, as long as the defence was afforded time to defend their case.
8. There was need to render substantial  justice even though the error was inadvertence and could have been corrected easily by just having the right judges sign the judgment since they were all based in the same station. That was one of the exceptional circumstances when a review power could be exercised in the residual jurisdiction of the court. In the instant case, one of the judges signing the judgment was the same, who with others heard the appeal, only that parties had agreed that the concluded hearing to be set aside when the status of the initial bench changed temporarily.
9. Section 200 of the CPC sought to secure the rights of parties in a trial once a judicial officer hearing a case ceased to exercise jurisdiction over the matter. Even though it was a Criminal Law principle it had been applied across the board in most of the hearings in furtherance of the constitutional right of fair hearing.
10. Upon return of JB Ojwang, SCJ to the original bench after he was cleared, his jurisdiction in the appeal was restored as before with lifting of suspension. He was the very same judge who sat in the hearing of the appeal, the very same judge who participated in the writing of the judgment, noting judgment had been reserved for delivery on notice. The notice would be issued once the bench which heard the matter was ready to deliver its judgment. His return to the bench, by operation of law under section 200 CPC had the effect of nullifying/voiding the consent of the parties so entered. His return signaled restoration of the status existing prior to the consent entered by the parties, meaning judgment would be delivered as earlier directed. The consent therefore crumbled and stood vacated by operation of law even without further order vacating it.
11. No amount of consent by the parties could confer jurisdiction where there existed none, on a court of law nor could one divest a court of jurisdiction which it possessed under the law.

Application dismissed; no order as to costs.