Independent Electoral & Boundaries Commission V Jane Cheperenger & 2 Others  EKLR
|Civil Application 36 of 2014
|15 Dec 2015
Jackton Boma Ojwang, Mohammed Khadhar Ibrahim, Willy Munywoki Mutunga, Smokin Charles Wanjala, Njoki Susanna Ndungu
Supreme Court of Kenya
Independent Electoral & Boundaries Commission v Jane Cheperenger, United Republican Party & Irine Kimutai Chesang
Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others  eKLR
Supreme Court rules on the rationale of preliminary objections
IEBC vs Jane Cheperenger & 2 others
Civil Application 36 of 2014
Supreme Court of Kenya
W.M. Mutunga,CJ; M.K. Ibrahim, J.B. Ojwang, S.C. Wanjala & N.S. Njoki, SCJJ
December 15, 2015
Reported by Kipkemoi Sang
The Applicant filed an application for extension of time to file Notice of Appeal, stay of contempt of Court proceedings filed against the Chairman of the Applicant, and stay of execution of the Judgment and orders of the Court of Appeal, pending hearing and determination of an intended appeal to the Supreme Court, against the Judgment and orders of the Court of Appeal at Nairobi. The 1st Respondent subsequently raised objection on point of law that the application was incompetent; bad in law; vexatious and an abuse of court process and should be struck out with costs. The Respondent inter alia relied on the grounds that: the Application was already overtaken by events and the intended appeal had been rendered nugatory. She further accused the Applicant of being indolent and guilty of latches.
- Whether the question at the preliminary objection stage as to the extension of time to file a notice of appeal out of time raised a pure question of law.
- What law related to the issue of an application seeking an order of extension of time to file a notice of appeal, and to the question of such an order being overtaken by events?
- Whether the accusation of indolence and guilt of latches directed to a party could be resolved at the preliminary stage.
- Whether the argument seeking to render the intended appeal nugatory could be argued at the preliminary stage.
- What was the rationale of preliminary objections?
Civil Practice and Procedure -preliminary objection-rationale of preliminary objections-what was the rationale of preliminary objections
Civil Practice and Procedure-intended appeals-arguments negating an intended appeal at the preliminary stage- whether the argument seeking to render the intended appeal nugatory could be argued at the preliminary stage
Civil Practice and Procedure-extension of time- extension of time to file a notice of appeal out of time-issues of law and/or facts- whether the question at the preliminary objection stage as to the extension of time to file a notice of appeal out of time raised a pure question of law- what law related to the issue of an application seeking an order of extension of time to file a notice of appeal, and to the question of such an order being overtaken by events
- Preliminary objection consisted of a point of law which had been pleaded or which arose by clear implication out of pleadings and which if argued as a preliminary point could dispose of the suit. A preliminary objection was in the nature of what used to be a demurrer. It raised a pure point of law which was argued on the assumption that all the facts pleaded by the other side were correct. It could not be raised if any fact had to be ascertained or if what was sought was the exercise of judicial discretion. The Court had to be satisfied that there was no proper contest as to the facts. The facts were deemed agreed, as they were prima facie presented in the pleadings on record.
- Preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts were incompatible with that point of law. In the instant case the prayer for consideration of extension of time to file a notice of appeal out of time tied with a claim that the issue had been overtaken by events was a factual issue, to be established by evidence from both parties. Therefore the Court was unable to dispose of the question, without first evaluating evidence from the parties. It raised no pure point of law on its own.
- The blame of indolence and guilt of latches could only be resolved while hearing the application itself for the extension of time. It made no valid ground for raising a preliminary objection. Without the filing of a notice of appeal, there can be no expressed intention to appeal. To invite the Court to rule that the intended appeal would be rendered nugatory at that juncture, had the effect of precluding a possible-appellant from the process of appellate justice, even before he or she reaches the decision to appeal. The instant case did not raise any reasonable grounds of appeal, and/or had no constitutional dimensions, or any matters of general importance devolving to the Supreme Court’s jurisdiction.
The true preliminary objection served two purposes of merit:
- it served as a shield for the originator of the objection against profligate deployment of time and other resources. and
- it served the public cause, of sparing scarce judicial time, so it could be committed only to deserving cases of dispute settlement. It was distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.
Preliminary objection disallowed. 1st Respondent to bear all costs