The difference in registration mechanism for engineers and engineering technologists and technicians.

Martin Wanderi & 106 others v Engineers Registration Board & 5 others; Egerton University & 43 others (Interested Parties) [2020] eKLR

Application No. 39 of 2019

Supreme Court of Kenya

PM Mwilu (DCJ & VP), MK Ibrahim, SC Wanjala, NS Ndungu and I Lenaola, SCJJ

May 15, 2020

Reported by Chelimo Eunice

 Jurisdiction – jurisdiction of the Supreme Court - jurisdiction of the Supreme Court to review its judgments, orders and rulings – scope of the Supreme Court’s power to review its decisions – circumstances which the Supreme Court could review its decisions – application seeking orders for Supreme Court to review its judgment which compelled the Engineers Registration Board to register persons who did not qualify as engineers to be registered as such – where the existence of the Engineering Technology Act was not brought to the attention of the court at the time it rendered the impugned judgment - Supreme Court Act, section 21 (4); Supreme Court Rules, rule 20 (4).

Statutes – interpretation of statutory provisions – Engineers Registration Act and Engineering Technology Act - interpretation of section 11 of the Engineers Registration Act on registration of engineers vis-à-vis section 15 of Engineering Technology Act on registration of engineering technologists or technicians – whether there  was a difference in registration mechanism for engineers and engineering technologists and technicians – whether the Engineers Registration Board had the mandate to register engineering technologists and technicians – whether engineering technologists and technicians qualified to be registered under the Engineers Registration Act - Engineers Registration Act, sections 2 and 11; Engineering Technology Act, sections 2 and 15.

Brief facts

The Engineers Registration Board (the applicant) sought a review of the court’s judgment dated July 17, 2018 directing it to register the respondents as engineers under the Engineers Registration Act, arguing that in compliance with the impugned judgment, the applicant took various steps, but in the process realized that some of the respondents did not graduate with engineering degrees but had bachelor of industrial technology degrees which made it difficult to register them as graduate engineers without breaching the law which limited registration of graduate engineers to persons holding engineering degrees. Further, that persons who held bachelor of industrial technology degrees and were therefore technologists and technicians were registered under the Engineering Technology Act (ETA) by the Kenya Engineering Technology Registration Board and not itself, hence the need for the court to review its judgment and remove the anomaly noted in the implementation of the same.

The respondents opposed the application arguing, among others, that it was filed inordinately, that the application was misguided and did not meet the threshold set out in rule 20(4) of the Supreme Court Rules (Rules) and that all the affected parties had been registered as graduate engineers and the impugned judgment had been fully implemented meaning that there was nothing left to review.

Issues

1. Whether the Supreme Court had jurisdiction to review its decisions.
2. What were the circumstances under which the Supreme Court could review its decisions?
3. What was the difference in registration mechanism for engineers and engineering technologists and technicians?
4. Whether engineering technologists and technicians qualified to be registered under the Engineers Registration Act.

Relevant provisions of the Law

Engineers Registration Act:

Section 11;

11. (1) Subject to this Act, a person shall be entitled, on making an application to the Board in the prescribed form and on payment to the Board of the prescribed fee, to be registered under this Act and to have his name entered in the register as a registered engineer if he is—

(b) a person who—

 (i) is the holder of a degree, diploma or licence of a university or school of engineering which may be recognized for the time being by the Board as furnishing sufficient evidence of an adequate academic training in engineering; and

 (5) Subject to this Act, a person shall be entitled on making an application to the Board in the prescribed form and on payment to the Board of the prescribed fee to be registered under this Act and to have his name entered in the register as a registered technician engineer if—

 (a) he is the holder of a higher national diploma or an equivalent qualification in engineering obtained from an engineering polytechnic or college recognized for the time being by the Board as furnishing evidence of adequate academic training; and

Engineering Technology Act:

Section 15;

 15. (1) A person may be registered in the engineering technology profession as a—

 (a) professional, which includes –

 (i) a professional engineering technologist; or

          (ii) a certified engineering technician.

Supreme Court Rules:

Rule 20(4);

The Court may, in circumstances it considers, exceptional, on an application by any party or on its motion, or review any of its decisions.

Held

1. Rule 20(4) of the Supreme Court Rules (Rules) gave the Supreme Court power, in circumstances it considered exceptional, to review any of its decisions. Unlike section 21(4) of the Supreme Court Act, rule 20(4) of the Supreme Court Rules would on its face, appear to confer upon the Supreme Court jurisdiction or powers, to review its own judgments, or decisions beyond the confines of the slip rule.
2. Neither the Constitution, nor the Supreme Court Act, explicitly, or in general terms, conferred upon the Supreme Court, powers to sit on appeal over its own decisions or to review such decisions.  That being the case, no rule of the Supreme Court, not even rule 20(4) of the Supreme Court Rules as worded, could confer upon the Supreme Court jurisdiction to review its own decisions. If that were the intent of rule 20(4) of the Rules, then the said rule would be of doubtful constitutional validity.  Therefore, rule 20(4) of the Rules was not capable of conferring upon the Supreme Court powers to review its decisions beyond the confines of the Slip Rule, as embodied in section 21(4) of the Supreme Court Act.  At best, that rule could only be understood to be echoing section 21(4) of the Supreme Court Act.
3. The Supreme Court, being the final court in Kenya, had no jurisdiction to sit on appeal over, or to review its own judgments, rulings or orders, save in the manner contemplated by section 21(4) of the Supreme Court Act.  It became functus officio once it had delivered judgment or made a final decision.
4. Nonetheless, there were situations so grave and exceptional that could arise, that without the Supreme Court’s intervention, could seriously distort its ability to do justice. Litigation had to come to an end, but it ought not come to an end in the face of an absurdity. The Supreme Court was the final Court, but most importantly, it was a final court of justice.  That being the case, it was clothed with inherent powers which it could invoke, if circumstances so demanded, to do justice.  The Constitution from which the Supreme Court, and indeed all courts derived their legitimacy, decreed that justice had to done to all.
5. Taking into account the edicts and values embodied in chapter 10 of the Constitution, as a general rule, the Supreme Court had no jurisdiction to sit on appeal over its own decisions, nor to review its decisions, save in the manner contemplated by section 21(4) of the Supreme Court Act.  However, in exercise of its inherent powers, it could, upon application by a party, or on its own motion, review any of its judgments, ruling or orders, in exceptional circumstances, so as to meet the ends of justice.  Such circumstances were limited to situations where:

 i) the judgment, ruling, or order was obtained, by fraud or deceit;

 ii) the judgment, ruling, or order was a nullity, such as, when the court itself was not competent;

 iii) the court was misled into giving judgment, ruling or order, under a mistaken belief that the parties had consented thereto;

 iv) the judgment or ruling was rendered on the basis of a repealed law, or as a result of a deliberately concealed statutory provision.

6. It had not been claimed by the applicant that the impugned judgment was obtained by fraud or deceit.  Neither had it been termed a nullity nor that it was made in the mistaken belief that the parties had consented thereto. 
7. Section 11 of the Engineers Registration Act (ERA) dealt with registration of engineers. Section 2 of the ERA defined engineering as the creative application of scientific principles to design or develop structures, machines, apparatus, or manufacturing processes, or works utilizing them singly or in combination or to construct or operate the same with full cognizance of their design or to forecast their behavior under specific operating conditions or aspects of intended function, economics of operation and safety to life and property.      
8. Section 15 of the Engineering Technology Act (ETA) on the other hand dealt with the registration of engineering technologists or technicians. Section 2 of ETA defined engineering technology as part of the engineering profession in which knowledge of applied mathematical and natural science gained by higher education, experience and practice was devoted to application of engineering principles and the implementation of technology education for the professional focusing primarily on analysing, applying, implementing and improving existing technologies and was aimed at preparing graduates for the purpose of engineering technology practices closest to the product improvement, manufacturing and engineering operational functions.
9. The two professions, while related, were different.  Engineering technology focused on the applied and practical application of engineering principles whereas engineers emphasized the theoretical aspects of mathematical scientific and engineering principles.  That partly explained why the degrees conferred on each were different so was the registration of graduates on qualification.
10. There was no issue with implementation of the impugned judgment and orders in as far as graduate engineers were concerned because the applicant had the jurisdiction and mandate to do so.
11. In the impugned judgment, the dichotomy between engineering technologists and engineers was not addressed at all. All the respondents were addressed as engineers seeking registration as graduate engineers under the ERA and the court’s orders were specific in that regard. 
12. To allow registration of engineering technologists and technicians under the ERA by judicial fiat would not be in the interests of justice.  The legislature in creating a separate registration mechanism for such professionals did not also intend that a court, without any technical expertise, would ignore the laid down procedure for registration and order a professional entity, such as the applicant, to flout the law in the conduct of its affairs.  In any event, nowhere in the impugned judgment was the applicant ordered to do so.  Court’s orders were limited to the registration of graduate engineers and not engineering technologists or technicians.  The existence of  ETA was not brought to the attention of the instant court at the time it rendered the impugned judgment and how its enactment affected implementation of section 11 of ETA which was the operative law at all material times. That non-disclosure was an important consideration on whether to grant a review or not.
13. An exceptional circumstance had arisen which required that the impugned judgment, in the relevant part, had to be reviewed as prayed.  All the petitioners and interested parties as were engineering technologists and technicians could not be the beneficiaries of some orders in the impugned judgment. Those orders were reviewed to exclude those persons and the said orders were limited to the benefit of graduate engineers only to be registered under the ERA.  That was because the applicant was not to blame for the position that those persons found themselves in.
14. The applicant had undertaken various actions in a bid to implement the impugned judgment until it hit a wall. Those actions took time and so the delay in filing the instant application was understandable and excusable.
15. The applicant’s invitation for the court to expand the principles for review of the Supreme Court judgments to include apparent errors of law and of fact and inability to implement judgment without breaching law and public interest would not be allowed. That was because the issue relating to the import of the ERA as read with the Engineering Technology Registration Act as well as double registration under existing statutes was never the subject of determination in the impugned judgment.  Had the court addressed those issues, which were never disclosed to it, the impugned judgment would have been significantly different. That was an exceptional circumstance necessitating a review of the impugned judgment. The already laid down principles applied to the instant application and there was no reason to depart from any other principle nor create additional principles for review of the Supreme Court’s judgments.
16. No evidence proving that the impugned judgment had already been implemented, hence the argument that there was nothing to review could not stand. In any event, the 2^nd interested parties did not participate in the instant application to authenticate that claim, hence that issue would not be addressed.

Application allowed with no orders as to costs.

Orders:

 i) Order no. (b) (3) in the judgment dated July 17, 2018 was reviewed as followed:

 “An order of mandamus do hereby issue directing the Engineers Registration Board to register such petitioners and 2^nd interested parties, as are qualified as engineers, under the Engineers Act forthwith. Such petitioners and 2^nd interested parties as are Engineering Technologists and Technicians shall be registered as Technologists and Technicians by the Engineering Technologist Registration Board and the Engineers Registration Board shall transmit this order to that Board for implementation forthwith.  In default, the said petitioners and interested parties shall be at liberty to apply to this court for any appropriate orders for enforcement thereof”.

ii) Such respondents as were engineering technologists and technicians would not be the beneficiaries of orders nos.(b) 1, 2, and 4 as well as (c) of the judgment dated July 17, 2018.

Supreme Court disallows an application to set aside orders for the withdrawal of a notice of appeal.

Tullow Oil PLC & 3 others v PS Ministry of Energy & 15 others

Civil Application No 1 of 2020

Supreme Court of Kenya

PM Mwilu (DCJ & VP), MK Ibrahim, SC Wanjala, NS Ndungi & I Lenaola, SCJJ

April 30, 2020

Reported by Beryl Ikamari

Civil Practice and Procedure - interlocutory application - procedural rule under which an application was made - where there was no rule of procedure which allowed the applicant to obtain the orders it sought - effect of failure to indicate the rule under which an application was made.

Civil Practice and Procedure - interlocutory application - filing of an interlocutory application at the Supreme Court - where a notice of appeal had effectively been struck out - whether an interlocutory application, which was about the filing of the notice of appeal, could be made before a petition of appeal or reference had been filed at the Supreme Court - Supreme Court Rules 2020, rule 31.

Brief facts

On May 8, 2019, the court allowed an application that sought orders that a notice of appeal dated August 8, 2016 be deemed as withdrawn or alternatively struck out. Thereafter, applicant sought orders for the setting aside and nullification of that ruling on various grounds including that it was ultra vires and obtained through fraud and misrepresentation. The respondents did not file a response to the application.

Issues

1. What was the effect of failure to indicate the rule of procedure under which an application was made?
2. What was the effect of there being no specific rule in the Supreme Court Rules, which provided for the orders sought in an application?
3. Whether an interlocutory application which was about the filing of a notice of appeal could be made before a petition of appeal or reference had been filed at the Supreme Court.

Held

1. Where an application was unopposed and the court saw merit in it, the application should be allowed without much ado. However, the application before the court was fraught with all manner of difficulties.
2. A party approaching any court had to indicate with a measure of precision what procedure it was invoking in doing so. The applicant sought orders to recall, set aside, rescind, nullify and void the ruling issued on May 8, 2019 but it did not cite any rule in the Supreme Court Rules 2011. That was an anomaly. Additionally, no specific rule provided for the orders that the applicant sought.
3. The Supreme Court Rules 2020 amended the Supreme Court Rules 2011. Under rule 31 of the Supreme Court Rules 2020, an interlocutory application was incapable of being originated before a petition of appeal or reference was filed before the court. There was no petition of appeal filed in order to authenticate the substantive issues that the court would deal with later.
4. Considering that the court struck out the notice of appeal, its jurisdiction to handle the application was in question. The applicant failed to address that question on jurisdiction.
5. The application was scandalous and devoid of merit and granting it would only placate a dissatisfied litigant who misunderstood the real reason his notice of appeal was struck out.
6. Litigation, however painful, had to come to an end. The applicant was flogging a dead horse and he ought to busy himself with other ventures of use to him. 

Application dismissed with no order as to costs.

A party yet to be joined in a suit cannot seek substantive orders in the suit.

County Assembly of Mandera County v Governor,  Mandera County & another [2020] eKLR

Reference No. 1 of 2018

Supreme Court of Kenya

PM Mwilu, DCJ &VP; MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola, SCJJ

January 23, 2020.

Reported by Kakai Toili

Civil Practice and Procedure – suits – parties to a suit – joinder of parties - where a party sought to be enjoined as an interested party - whether a party yet to be joined in a suit could seek substantive orders in the suit.

Brief facts

The intended interested parties filed the instant application seeking to be enjoined as interested parties in the reference filed by the County Assembly of Mandera County (the applicant) for an advisory opinion. The intended interested parties sought to participate and submit on the following; the procedure for appointment of members of the executive committee; whether there was a lacunae in law where a county assembly failed to approve the nominees for a county executive committee and whether the matter could be resolved by the advice of the Attorney General before approaching the court.

The intended interested parties contended that they had a direct and legitimate interest in the petition, the 1^st intended interested party being the appointing officer of the Members of County Executive Committee for Mandera and the 2^nd intended interested party being the County Government in respect to whom the appointees were being appointed. The intended interested parties also filed an application for the dismissal of the reference.

Issue

Whether a party yet to be joined in a suit could seek substantive orders in the suit.

Held

A party yet to be enjoined in a matter such as the instant reference, lacked the capacity to seek any substantive orders in it. The prayer that the reference be dismissed because it was sub judice was premature.

Application partly allowed; no orders as to costs. Prayer seeking dismissal of the reference disallowed for being premature.

Cases

East Africa

1.Gellow, Simba Hasheen v Governor of the County Government of Mandera and 2 others Constitutional Petition No 7 of 2018;[2018]eKLR –(Explained)

2.Muruatetu, Francis Karioki & another v Republic & 5 others Petition No 15 & 16 of 2015 (consolidated);[2016] eKLR –(Followed)

4.Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others Petition No 12 of 2013; [2015] eKLR –(Followed)

Statutes

East Africa

None Referred

Advocates

1. Mr Anzal Rashid Yarrow for the County Government of Mandera County

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.

Delay in receiving certified copies of proceedings was a valid reason to warrant extension of filing of an appeal at the Supreme Court.

John Mbogua Getao v Simon Parkoyiet Mokare & 4 others

Application No 3 of 2018

Supreme Court of Kenya

PM Mwilu, DCJ & VP; MK Ibrahim, SC Wanjala, SN Ndungu and I Lenaola

November 8, 2019

Reported by Ribia John

Civil Practice and Procedure – appeals – appeals to the supreme court – appeals as of right - determination of substantive issues at the preliminary stage - whether a determination of substantive issues raised in an appeal to the Supreme Court at the preliminary stage was premature – Constitution of Kenya, 2010 article 163(4)(a)

Civil Practice and Procedure – appeals – appeals to the supreme court – appeals as of right – application for extension of time – delay caused by delay in receiving certified copies of proceedings from the Court of Appeal – whether delay in receiving certified copies of proceedings was a valid reason to warrant extension of filing of an appeal at the Supreme Court – Constitution of Kenya, 2010 article 163(4)(a)

Brief Facts

The applicant sought extension of time in filing an appeal to the Supreme Court under article 163(4)(a) of the Constitution. He argued that the reason for the delay was on account of the delay by the Court of Appeal in issuing certified copies of the proceedings. The respondents filed preliminary objections in which they claimed that the application and intended appeal were incompetent for failing to meet the principles of extension of time and for not raising matters worthy of invoking the Supreme Court’s jurisdiction under article 163(4)(a) of the Constitution.

Issues

1. Whether a determination of substantive issues raised in an appeal to the Supreme Court at the preliminary stage was premature.
2. Whether delay in receiving certified copies of proceedings was a valid reason to warrant extension of filing of an appeal at the Supreme Court.

Held

1. The instant matter arose out of a petition for the interpretation and application of articles 23, 27, 50, 63, 40, and 47 of the Constitution. That clothed the instant court with jurisdiction as of right under article 163(4)(a) of the Constitution. The preliminary objections went to the merit of whether the issues raised qualified as constitutional matters and upholding them at the preliminary stage was premature as the issues raised could be sufficiently argued and considered in the substantive appeal. If the matter raised constitutional issues as contended, the applicant had not explained why he could not file his appeal, as he was obliged to, within the stipulated timelines under the Supreme Court Rules. The applicant merely stated that there was inadvertence on the part of his advocate, without elaborating.
2. The delay in issue was 19 days as the appeal ought to have been filed by January 28, 2018 and the applicant filed his initial application for extension of time on February 22, 2018. The applicant was yet to receive certified copies of proceedings, which remained a prerequisite for a record of appeal under the Supreme Court Rules. The applicant had satisfied the threshold for the supreme court to exercise our discretion to extend time within which to lodge his appeal.
3. The intended appeal raised arguable points. The interests of justice tilted towards the protection of the substratum of the matter. Should the appeal eventually not succeed, appropriate remedy would be granted at the time based on parties’ positions as presented during the prosecution of the appeal.

Application allowed.

Orders

1. The preliminary objections by the 1^st respondent dated April 5, 2018 and by the 2^nd and 3^rd respondents dated July 18, 2018 were disallowed.
2. Applicant was to file its appeal within 7 days from receipt of the typed proceedings from the Court of Appeal.
3. Applicant was to take measures towards pursuing the proceedings from the Court of Appeal in order to expedite the filing of the appeal.
4. Costs awarded to the respondents.

Issues of controversy that emerge from transitional political-economic-social cum-legal factors, with impacts on current rights and entitlements of suitors, or on public access to common utilities and services are matters of general public importance

Pati Limited v Funzi Island Development Limited and 4 others

Civil Application No 4 of 2015

Supreme Court of Kenya

P M Mwilu; DCJ & VP, M K Ibrahim, S C Wanjala, N Njoki & I Lenaola, SCJJ

August 6, 2019

Reported by Ian Kiptoo

Civil Practice and Procedure – appeals – appeals to the Supreme Court – certification by the Court of Appeal – review by the Supreme Court – claim that matters were of general public importance – where matter involved balancing between private interests vis-à-vis public interest - whether issues that were sought to be certified to be of general public importance ought to have arisen through the normal judicial hierarchy - whether a matter touching on the determination if suit land was trust land, and if so, whether it was regularly and legally allocated to private persons was a matter of general public importance

Brief Facts

The applicant sought a review of the Court of Appeal ruling which declined to certify its intended appeal to the Supreme Court as one involving a matter of general public importance. The application also sought a stay of execution of the judgment of the Court of Appeal delivered in Mombasa C. A. No. 252 of 2005, pending its hearing and determination.

The applicant submitted that the issue whether a title to land could be revoked and the process to be followed when a title was challenged in public interest were matters of general public importance.

Issues

1. Whether issues that were sought to be certified to be of general public importance ought to have arisen through the normal judicial hierarchy.
2. Whether a matter touching on the determination if suit land was trust land, and if so, whether it was regularly and legally allocated to private persons was a matter of general public importance?

Held

1. An applicant seeking certification should out rightly, in its application, set out with precision the issues it considered to be of general public importance. Parties had been cautioned against engaging in rhetoric and second guessing where they convoluted their pleadings and grounds on the pretext that the Court would filter out what it thought amounted to matters of general public importance and leave out what was not.
2. Issues that came to the Court on appeal were those that had risen through the judicial hierarchy. When a party sought certification and leave to appeal to the Supreme Court, the questions he/she sought to bring to the Supreme Court must have been subject of consideration/litigation in the High Court and then the Court of Appeal. One could not frame novel matters as forming matters of general public importance when making an application for leave either in the Court of Appeal or the Supreme Court. The majority of the issues that the applicant had framed as matters of general public importance did not make sense considering the context of the Court of Appeal’s decision and framing of only three issues. 
3. The appellate court should have taken a broader perspective on the issue before them; the Hermanus principles were not exclusive. Issues of controversy that emerged from transitional political-economic-social-cum-legal factors, with impacts on current rights and entitlements of suitors, or on public access to common utilities and services, would merit a place in the category of matters of general public importance.  The certification principle was applicable in the matter as was set in the case of Town Council of Awendo v Nelson Oduor Onyango & 13 others [2015] eKLR rendered just over one month after the ruling of the Court of Appeal under challenge.
4. It was in the public interest that the Supreme Court settled with finality the question whether the land subject of the matter belonged to the applicant or whether it fraudulently acquired its title. At play also was the balancing between private interests vis-a-vis public interest. The balancing and determination was a matter of general public interests. The crux of the matter was whether the title of the applicant to the suit land was fraudulently acquired or not, which land had to be determined whether it was public land or not, and whether it was available for allocation or not, the matter raised questions of general public importance.
5. Not all the seventeen questions framed by the applicant for determination merited appeal to the Supreme Court. Duly guided by the issues that the Court of Appeal considered and for pragmatism, the issue certified to be of general public importance which the Supreme Court should consider in the intended appeal was: whether the land subject matter of the suit was initially trust land, a public beach or a mangrove forest protected under the Forest Act; and if it was Trust Land and or public land, it was properly, regularly and legally allocated to Hon. Mwamzandi who later re-allocated it to Pati Limited, the applicant.

Application allowed, costs of the application would be in the cause.

A notice of appeal at the Supreme Court not accompanied by institution of an appeal within the prescribed time will be deemed as withdrawn in accordance with rule 37 of the Supreme Court Rules

Hassan Jimal Abdi v Ibrahim Noor Hussein & 2 others [2019] eKLR

Civil Appeal No 35 of 2018

Supreme Court of Kenya

P M Mwilu, DCJ &VP; M K Ibrahim, S C Wanjala, N Ndungu & I Lenaola, SCJJ

August 6, 2019

Reported by Moses Rotich

Civil Practice and Procedure-appeals-appeals to the Supreme Court-timelines within which to file the notice of appeal, petition of appeal and record of appeal-failure to file the petition and record of appeal-effect of-whether the failure to file the record of appeal within thirty days after filing a notice of appeal meant no appeal existed–whether, in absence of an application for extension of time to file a record of appeal, the Supreme Court was estopped from exercising its discretionary powers to allow the applicant to file a record of appeal out of time-whether rule 37 of the Supreme Court Rules could be read in isolation from rule 53 to deem the notice of appeal already filed as withdrawn-Supreme Court Rules, 2010, rules 33 (1), 37 & 53

Brief facts

The instant application sought a stay of execution of the Court of Appeal orders delivered on November 23, 2018 in Election Appeal No 30 of 2018.

Ibrahim Noor Hussein (the applicant) had been declared elected Member of County Assembly (MCA) for Batalu Ward in Wajir County following the August 2017 general elections. His election was challenged before the Magistrate Court. The trial court nullified the said election on grounds that it was not conducted in a free and fair manner. An order for fresh elections was issued. The applicant’s appeal to the High Court failed prompting him to move to the Court of Appeal. The Court of Appeal, finding that it did not have jurisdiction to determine the matter, struck out the appeal.

The applicant filed the instant application and sought, inter alia, a stay of execution of the Court of Appeal orders and conservatory orders restraining the 3^rd respondent from declaring the seat for MCA in Batalu Ward vacant and conducting fresh elections pending the hearing and determination of both the instant application and the intended appeal.

Issues

1. Whether the failure to file the petition of appeal within thirty days after filing a notice of appeal meant no appeal existed.
2. Whether the notice of appeal filed could be deemed as withdrawn after failure to institute an appeal within the prescribed time.
3. Whether, in absence of an application for extension of time to file a record of appeal, the Supreme Court was estopped from exercising its discretionary powers to allow the applicant to file a record of appeal out of time.
4. Whether, in absence of an application to file a record of appeal out of time, rule 37 of the Supreme Court Rules could be read in isolation from rule 53 to deem the notice of appeal already filed as withdrawn.

Relevant Provisions of the Law

Supreme Court Rules

Rule 33(1)

(1) An appeal to the Court shall be instituted by lodging in the registry within thirty days of the date of filing of the notice of appeal —

 (a) A petition of appeal;

 (b) A record of appeal; and,

 (c) The prescribed fee.

Rule 37

(1) Where a party has lodged a notice of appeal but fails to institute the appeal within the prescribed time, the notice of Appeal shall be deemed to have been withdrawn, and the Court may on its own motion or on application by any party make such orders as may be necessary.

(2) The party in default shall be liable to pay the costs arising therefrom to any person on whom the notice of appeal was served.  

Rule 53

The Court may extend the time limited by these Rules, or by any decision of the Court.

Held

1. The applicant filed a notice of appeal on November 28, 2018, but failed to institute an appeal thereafter. Rule 33(1) of the Supreme Court Rules required the applicant to file the petition and record of appeal within thirty days of filing the notice of appeal.
2. The applicant’s prayer to the Court to exercise its discretion and grant the orders sought had nothing to be based on because there was no basis upon which the Court could discern whether there was an arguable case before it in the absence of grounds of appeal. The applicant had not filed an application for extension of time to enable the Court to exercise its discretion as provided under rule 53 of the Supreme Court Rules.
3. Where an application for extension of time had been filed, rule 37 of the Supreme Court Rules would normally be read in conjunction with rule 53. In the instant matter, no such application had been filed making it a safe case where rule 37 could be read in isolation. A reading of rule 37 in isolation, therefore, meant that the notice of appeal filed by the applicant was fit for deeming it as withdrawn. Without an active appeal, the instant application was predicated on nothing.   

Application dismissed; costs to be borne by the applicant.

Editorial note:

The citation of the case wrongly named the applicant as Hassan Jimal Abdi. The actual applicant in the application before Court was Ibrahim Noor Hussein.

The Supreme Court does not have jurisdiction to interfere with interlocutory orders of the Court of Appeal made in exercise of its discretionary powers provided under rule 5(2)(b) of the Court of Appeal Rules

John Muthee Ngunjiri & 3 others v Kenya Power & Lighting Company Limited [2019] eKLR

Petition (Application) No 44 of 2018

Supreme Court of Kenya

P M Mwilu, DCJ & VP; M K Ibrahim, S C Wanjala, N Ndung’u & I Lenaola, SCJJ

August 6, 2019

Reported by Moses Rotich

Jurisdiction-appellate jurisdiction of the Supreme Court-jurisdiction of the Supreme Court to entertain interlocutory appeals from the Court Of Appeal-appeal challenging the exercise of the Court of Appeal’s discretionary powers-where substantive appeal was pending before the Court of Appeal-whether the Supreme Court had the jurisdiction to entertain a petition of appeal challenging the orders of the Court of Appeal made in exercise of its discretionary powers- Court of Appeal Rules, 2010, rule 5(2)(b)

Brief facts

The High Court entered judgment against the Kenya African Union (KANU) in favour of the applicant for unpaid electricity bills for their headquarters’ offices in Nairobi. Subsequently, the applicant moved and attached KANU’s parcel of land in Nakuru, an act that made the instant petitioners moved the High Court in Nakuru seeking a declaration that the suit property was the exclusive property of KANU, Nakuru Branch. The petitioners also sought a stay of execution, attachment and sale by public auction of the suit land, which application was dismissed by the Deputy Registrar of the High Court. The petitioners’ appeal to the High Court against the registrar’s decision failed prompting the appellants to move to the Court of Appeal. The Court of Appeal declined to issue a stay of execution pending the hearing and determination of the appeal. Aggrieved, the petitioners appealed to the instant Court against the said interlocutory order of the Court of Appeal.

Upon being served with the petition of appeal, the respondent/applicant filed the instant application seeking to strike out the petitioner’s appeal for want of jurisdiction.

Issue

Whether the Supreme Court had jurisdiction to entertain a petition of appeal challenging the orders of the Court of Appeal made in exercise of its discretionary powers  under rule 5(2)(b) of the Court of Appeal Rules.

Relevant Provision of the Law

Court of Appeal Rules, 2010

Rule 5(2)(b)

(2) Subject to sub-rule (1), the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the Court may —

(a) ….,

(b) in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 75,

order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just.

Held

1.      The substantive appeal was still pending before the Court of Appeal. Also pending before the appellate Court was an application by the instant applicant to strike out that appeal. Concisely, the substantive justice of the instant matter still laid before the Court of Appeal for determination.

2.      Previous jurisprudence had been consistent that the instant Court had no jurisdiction to entertain an application challenging a Court of Appeal decision made in exercise of its discretionary jurisdiction under rule 5(2)(b) of the Court of Appeal rules. The instant case was a similar one and there was no reason to depart from that sound jurisprudence.

3.      Having established that the substantive appeal in the instant matter was still pending in the Court of Appeal and that the decision of the Court of Appeal, delivered on  October 26, 2018, was subject of an application for stay of execution under rule 5(2)(b) of the Court of Appeal Rules 2010, no appeal laid to the instant Court. Accordingly, petition of appeal before the instant Court was fatally defective for want of jurisdiction.

Application allowed; costs to be borne by the respondents.

The Supreme Court does not have the jurisdiction to interfere with  exercise of discretion by the Court of Appeal to stay a High Court judgment pending determination of its appeal where there was no appeal pending before it

Okiya Omtatah Okoiti v Sicpa Securities Sol Sa & 2 others [2019] eKLR

Application No. 15 of 2018

Supreme Court of Kenya

P M Mwilu DCJ & VP; M K Ibrahim, S C Wanjala, N Njoki  & I Lenaola, SCJJ

July 23, 2019.

Reported by Kakai Toili

Jurisdiction – jurisdiction of the Supreme Court – jurisdiction over exercise of discretion by the Court of Appeal – where the Court of Appeal stayed a judgment of the High Court pending determination of its appeal - where there was neither an appeal nor an intended appeal pending before the Supreme Court - whether the Supreme Court had the jurisdiction to entertain applications challenging the exercise of discretion by the Court of Appeal to stay a judgment of the High Court pending determination of its appeal - what were the circumstances in which the Supreme Court could entertain an application challenging the exercise of discretion by the Court of Appeal to stay a judgment of the High Court pending determination of its appeal – Constitution of Kenya, 2010, article 164(3); Court of Appeal Rules, 2010, rule 5(2)(b)

Brief Facts

The 2^nd respondent through a public notice announced that with effect from  November , 2017, bottled water, juices, soda and other non-alcoholic beverages and cosmetics manufactured or imported into Kenya had to be affixed with excise stamps. Aggrieved by the 2^nd respondent’s action the applicant filed a constitutional petition at the High Court challenging the legal instrument whose contents were part of the public notice. The High Court decided that the Legal Notice in question was enacted in a manner inconsistent with the Constitution and the Statutory Instruments Act on account of want of adequate public participation prior to its enactment. Aggrieved by that decision, the 2^nd and 3^rd respondent filed an appeal at the Court of Appeal and also applications  seeking to stay the execution of the judgment of the High Court pending the hearing and determination of their appeals. The Court of Appeal allowed their application for stay.

Aggrieved by the Court of Appeal’s decision, the applicant filed an application seeking among other orders for stay of the orders granted by the Court of Appeal in Civil Application No. 76 of 2018 (UR 67/2018) consolidated with Civil Application No. 78 of 2018 (UR 68/2018). The 3^rd respondent subsequently filed an application seeking among others orders that the applicant’s application be struck out. The 1^st respondent filed a notice of preliminary objection seeking to strike out the applicant’s application on grounds that the Court lacked jurisdiction to hear and determine an application challenging the exercise of discretion by the Court of Appeal under rules 5(2) (b) of the Court of Appeal Rules among other grounds.

Issues

1. Whether the Supreme Court had the jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal to stay a judgment of the High Court pending determination of its appeal where there was no appeal pending before it.
2. What were the circumstances in which the Supreme Court could entertain an application challenging the exercise of discretion by the Court of Appeal to stay a judgment of the High Court pending determination of its appeal?

Relevant Provisions of the Law

Court of Appeal Rules, 2010

Rule 5 - Suspension of sentence, injunction and stay of execution and stay of further proceedings

2. Subject to sub-rule (1), the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the Court may—

2. in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 75,

order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just.

Held

1. The jurisdiction of the Court was limited, jurisdiction flowed from the Constitution and legislation. Rule 5(2)(b) of the Court of Appeal Rules(Rules) was derived from article 164(3) of the Constitution and it illuminated the Court of Appeal’s inherent discretionary jurisdiction to preserve the substratum of an appeal. There would be a pending or an intended appeal, as a basis to entertain an application for stay of execution and the Court lacked jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under rule 5(2)(b) of the Rules where there was neither an appeal, nor an intended appeal pending before the Court.
2. The issues raised in the application by the applicant had not been adjudicated upon by the Court of Appeal. The appeals were indeed still pending in the Court of Appeal, there was no judgment by the Court of Appeal in which constitutional issues or matters of general public importance had been canvassed. Interlocutory applications filed under rule 5(2) (b) of the Rules were not appeals as envisaged by article 164(3) of the Constitution.
3. The applicant made an application dated July 23, 2018 seeking the Court of Appeal to vary or rescind its order granted on May 11, 2018, such conduct amounted to an abuse of court process. An applicant should have first pursued the application in the Court of Appeal to avoid conflicting decisions from the Court and the Court of Appeal.
4. If the Court were to follow the decision in Deynes Muriithi & 4 others v. Law Society of Kenya & another [2016] eKLR, which it did not, the applicant had not demonstrated that the decision of the Court of Appeal had the effect of disposing of the substratum of the substantive matter before the High Court. He had not demonstrated that the order of the Court of Appeal had a pre-emptive effect on the appeals pending in the Court of Appeal.
5. The notice of preliminary objection was mainly challenging the jurisdiction of the Court to entertain the application by the applicant which was a pure point of law. There were no contested facts that needed to be ascertained in determining the issue of jurisdiction.
6. There was no application in the instant matter for two reasons;

1. the Court was unable to categorize the application as constitutional litigation;
2. all the respondents had expended their resources in defending the applicant’s application.

It was important for an applicant to be mindful of the cost implication in litigation before embarking on that journey.

Applicant’s application dismissed, notice of preliminary objection upheld and 3^rd respondent’s application allowed; applicant to bear the costs of all the respondents in all the applications.

Cases

East Africa

1.Basil Criticos v Independent Electoral and Boundaries Commission & 2 others Petition No 22 of 2014; [2015]-(Followed)

2.Charo, Hassan Nyaje v Khatib Mwashetani & 3 others Civil Application No 23 of 2014;[2014]eKLR–(Mentioned)

3.Equity Bank Limited v West Link MBO Limited Civil Application No 78 of 2011 (UR 53 of 2011;[2013]eKLR-(Cited)

4.Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone Application 4 of 2012;[2013] eKLR-(Explained)

5.Kangethe Kinyanjui v Tony Keter & 5 others Civil Application 97 of 2016;[2013] eKLR-(Explained)

6.Mukisa Biscuit Co v West End Distributors (1969) EA 696 –(Explained)

7.Muriithi, Deynes & 4 others v Law Society of Kenya & another Civil Appeal 12 of 2015;[2016] eKLR-(Explained)

8.Nduttu & 6000 others v Kenya Breweries Ltd & another [2012] 2 KLR 804 -(Mentioned)

9.Njihia, Daniel Kimani v Francis Mwangi Kimani & another, Sup Ct Civil Application No 13 of 2014; [2015] eKLR -(Explained)

10.Owners of Motor Vessel Lilian “s” v Caltex Oil Kenya Ltd [1989] KLR 1 –(Mentioned)

11.Seven Sea Technologies Limited v Eric Chege Miscellanous Application No 29 of 2013;[2014] eKLR –(Mentioned)

12.Sum Model Industries Ltd v Industrial & Commercial Development Corporation [2011]  2 KLR 122–(Mentioned)

13.Teachers Service Commission v Kenya National Union of Teachers & 3 others Petition No 23 of 2013; [2013] eKLR –(Followed)

14.Transcend Media Group Limited v Independent Electoral & Boundaries Commission Civil Suit No 304 of 2014;[2015] eKLR –(Explained)

15.Twaha, Fahim Yasim v Timamy Issa Abdalla & 2 others Civil Application No 35 of 2014[2015] eKLR-(Mentioned)

16.Wandambusi, Geoffrey Wambanda & another v Attorney General for and on Behalf of the Commissioner for Lands & 3 others Civil Appeal No 13 of 2016;[2017] eKLR-(Explained)

South Africa

1. Biowatch Trust v. Registrar Genetic Resources and others [2009] ZACC 14; 2009 (6) SA 232 (CC) ; 2009 (10) BCLR 1014 (CC)  -(Explained)

Nigeria

1. Chief (Dr) Pere Ajuwa v The Shell Petroleum Development Company of Nigeria Limited SC 290 of 2007; [2011] NGSC 7 (16 December 2011) (SC.290/2007) [1960] NGSC 1 (15 December 2011)-(Cited)

Statutes

East Africa

1.Constitution of Kenya, 2010 articles 3(1); 22(1)(2)(c); 48; 163(4) (a); 258(1)(2)(c)-(Interpreted)

2.Appellate Court Rules, 2010 (cap 9 Sub Leg) rules 5(2) (b) –(Interpreted)

3.Supreme Court Act, 2011 (Act No 7 of 2011) section 15 (1) (2)

Advocates

None Mentioned