A certification for leave to appeal to the Supreme Court on a matter involving general public importance shall be made at the Court of Appeal in the first instance

Brief facts

The applicant received an adverse judgment at the Environment and Land Court and sought to get a stay of the decision at the Court of Appeal. A single judge bench of the Court of Appeal, dismissed his application for stay. Further aggrieved the applicant approached the Supreme Court with an application that sought to leave to appeal the decision of the Court of Appeal. The applicant sought leave in two respects. The first leave was towards the appeal to the Supreme Court and the second leave was towards the appeal to the Court of Appeal. The latter leave was sought alongside stay of execution of the decision of the Environment and Land Court.

Issues

1. Whether the Supreme Court had the jurisdiction to determine an application for certification for leave for appeal to the Supreme Court where the same had not been lodged and determined by the Court of Appeal.
2. Whether the Civil Procedure Act and its rules were applicable to the Supreme Court.

Held

1. The applicant did not resort to rule 57(1)(b) of the Court of Appeal Rules 2022 by filing a reference to the full bench of the Court of Appeal to vary, discharge or reverse the said decision of the single Judge of the Court of Appeal. The applicants prayer for leave to appeal against the dismissal did not at the first instance fall for the Supreme Courts determination.
2. The applicant had invoked the provisions of section 3A of the Civil Procedure Act, which were inapplicable when moving to the Supreme Court. The Supreme Court was only moved under the Constitution, the Supreme Court Act, and the Supreme Court Rules 2020.
3. The appellate jurisdiction of the court to hear appeals from the Court of Appeal was exercised pursuant to article 163(4)(a) or (b) of the Constitution as read together with sections 15, 15A and 15B of the Supreme Court Act. Those provisions granted the court jurisdiction to hear appeals from the Court of Appeal on matters relating to the interpretation and application of the Constitution and those involving matters certified as matters of general public importance.
4. The application did not indicate which appellate jurisdiction of the court it sought to invoke. To the extent that the applicant sought leave under section 15B(2) of the Supreme Court Act, a certification for leave to appeal to the Supreme Court on a matter involving general public importance shall only be made first at the Court of Appeal, and a party dissatisfied with the Court of Appeal decision may apply to the Supreme Court for review.
5. The application had not distilled and framed any specific questions that transcended the parties so that the matter could be certified as involving issues of general public importance. The applicant did not proffer any explanation or reasons for failure to adhere to this prerequisite step. There was no reason to excuse the omission to enable the court to consider the prayer for leave.
6. The applicant was yet to file the substantive appeal as she only alluded to a draft Memorandum of Appeal as annexed to the affidavit in support of the application. The Supreme Court Act, and the Supreme Court Rules provided for the institution of an appeal to the Supreme Court, including the form of the petition of appeal. Pursuant to rule 36 of the Supreme Court Rules, a person intending to make an appeal to the court, was to file a notice of appeal within fourteen days from the date of judgment or ruling, and file it in the first instance with the registrar of the court from which the appeal originated and upon filing, transmit a copy of the notice to the Supreme Court registry.
7. The Notice of Appeal annexed to the application, though indicated to have been filed on March 30, 2023 has not been signed and sealed by the Registrar of the Court of Appeal. There was no evidence of transmission of the same to the Supreme Court. The failure to file or transmit a notice of appeal was not mandatory in relation to an appeal on a matter of general public importance, and could as well be filed upon grant of certification. It was not indicated which of the Supreme Courts jurisdiction the applicant sought to invoke.

Circumstances under which the Supreme Court would review its own decisions.

Brief facts

The matter arose from a dispute of the division of 3 constituencies within Garissa County. The matter was resolved by the Supreme Court On June 16, 2023. The applicant was aggrieved by the findings of the court and filed the instant application for review in which he sought for the Supreme Court to vary the judgment or set it aside. 

The respondents opposed the application on grounds that the applicant was attempting to relitigate the matter. They contended that the applicant had not met the threshold for the Supreme Court to review its own decision. 

Issues

Under what circumstances would the Supreme Court review its own judgments, rulings or orders?

Held

1. As a general rule, the Supreme Court had no jurisdiction to sit on appeal over its own decisions, nor review its own decisions, other than in the manner contemplated by section 21(4) of the Supreme Court Act. However, in exercise of its inherent powers, the court, may upon application by a party or on its own motion, review, any of its judgments, rulings, or orders, in exceptional circumstances, so as to meet the ends of justice. The exceptional circumstances were limited to instances where:
   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 applicant had not demonstrated how the judgment delivered on June 16, 2023 that he sought to have impugned met the exceptional circumstances above. Ground 3 of the motion introduced a new cause of action. Review could never issue in such circumstances. The application for review did not meet the requisite threshold.
3. The applicant had disguised his application as a review but it was in fact an appeal. An application for review, was not meant to afford the losing party, an opportunity to re-litigate or re-open a matter merely because such party was unhappy with the outcome.
4. The Supreme Court lacked jurisdiction to entertain a second appeal over its own judgment. Once the court had determined an appeal from the Court of Appeal, it became functus officio, and such a judgment stood until it was departed from in a future case or reviewed with the exceptional circumstances outlined earlier.

The printed copy of any pleading to the Supreme Court, while matching the electronic copy, should be filed simultaneously with the latter

Brief facts

The applicant filed an originating motion dated April 30, 2021 seeking review of the ruling declining to grant certification. The applicant also filed a notice of motion dated April 13, 2023 and filed on June 7, 2023 seeking leave to amend the originating motion. The applicant contended that the Court of Appeal when declining to grant certification, failed to appreciate that private citizens entered into contracts with Government agencies all the time and the procurement law was structured in a way that private citizens lacked the means of knowing whether the officials of those Government agencies had complied with their statutory obligations and internal policies, before entering into such contracts. The applicant contended that the intended appeal met the threshold to be certified as a matter of general public importance. 

The notice of motion sought leave to the originating motion on grounds that the applicant failed to include the orders it was seeking in the originating motion. The 1^st respondent opposed the notice of motion on grounds that: the application was filed two years after the original originating motion of April 30, 2021, hence the inordinate delay in filing the application had not been explained; should such an extension be granted, it would have been extended by a huge margin; and the application was a futile exercise and an abuse of the courts process. 

Issues

What was the effect of failure to file the printed copy of a pleading at the Supreme Court, after filing the electronic copy? 

Held

1. The applicant filed its originating motion dated April 30, 2021on the courts e-filing online platform on April 30, 2021, which was the last day for filing an application seeking review of a certification ruling from the Court of Appeal. The invoice from the e-filing platform proved that. As per rule 33(2) of the Supreme Court Rules, such a review should be sort within 14 days. However, the applicant failed to also file the printed copy of the originating motion and only proceeded to present the physical copy on June 7, 2023, almost two years after filing the electronic copy. 
2. A plain reading of rule 12 of the Supreme Court Rules would lead to the simple conclusion that the printed copy of any pleading, while matching the electronic copy, shall be filed simultaneously with the latter. That must remain the operative rule in the court. The applicant had physically filed its originating motion almost two years from the date of delivery of the ruling, more specifically, a delay of 1 year and 11 months. The originating motion, although filed electronically, failed to comply with the procedure provided for under rule 12 of the Supreme Court Rules. 
3. The applicant did not provide an explanation as to why he failed to present the printed copies to the registry as was required under the Supreme Court Rules. Instead, the applicant proceeded to file another application seeking leave to amend its application for review, though being fully aware that it had sat on the printed copy of the originating motion. The originating motion dated April 30, 2021, having been filed on June 7, 2023 was not properly filed. As a corollary, the applicants notice of motion dated April 13, 2023 and filed on June 7, 2023 fell by the wayside as it had no leg to stand on. 

The Supreme Court has the discretion of allowing amendments to a petition to determine the real questions in dispute

Brief facts

The applicant contended that it filed its appeal without the proceedings of the Court of Appeal and the High Court as they had not been typed by then and that the record of appeal was incomplete without the proceedings of the courts. The applicant further contended that it was necessary to amend the petition of appeal so as to bring out the inadvertently omitted background information on the matters raised in the arbitration and that the information would enable the court to make a determination from a fully informed position.

The applicant argued that the amendment would give the court a wider latitude to either hear and ventilate through the issues raised before the arbitrator and give its final determination or remit the same back to the arbitrator for a fresh hearing. The applicant stated that application ought to be allowed in the spirit of the courts judicial authority under article 159 of Constitution of Kenya, 2010 (Constitution) and that no prejudice would be suffered by the respondent should the orders sought be granted. The applicant finally contended that the amendment was necessary so as to bring out the background information and material and that the information had a direct bearing on the main issue of the appeal. 

Issues

1. Whether the Supreme Court had discretion to allow amendments to a petition to determine the real questions in dispute. 
2. Whether the Supreme Court could delve into the merits or the likelihood of success of a matter in an application to amend a petition and to file a supplementary record of appeal. 

Held

1. The provisions of section 21(2) of the Supreme Court Act, 2011 and rule 3(5) of the Supreme Court Rules, 2020 granted the court inherent power to make any ancillary or interlocutory orders as may be necessary for the ends of justice. The court therefore had discretion to allow amendments to determine the real questions in dispute and to do substantial justice. Thus, the purpose of any amendment was to define the real question in controversy and the respondent would, in any event, have an opportunity to respond to the same.
2. The court had powers to grant leave to file a supplementary record under rule 40(4) of the Supreme Court Rules, 2020, when satisfied that the amendment sought to introduce a critical document that had been omitted.
3. From a perusal of the draft amended petition, the applicant sought to set out the background of what transpired before the arbitrator including an additional prayer. The applicants argument was that it merely intended to place the issues in disputation in perspective to facilitate the just determination of the appeal.
4. In the courts earlier ruling delivered on January 27, 2023 in the instant matter (Kampala International University v Housing Finance Company Limited (Petition (Application) 34 (E035) of 2022) [2023] KESC 5 (KLR) (27 January 2023) (Ruling)), the court noted some of the contentions that rendered the appeal arguable. Taking into account the respondents perception as to the nature and extent of issues in the intended appeal, the court, like in the earlier ruling, shall not at that juncture delve into the merits or the likelihood of success. The parties would have ample time to fully ventilate their arguments in line with the courts jurisdiction under article 163(4)(a) of the Constitution. The respondents prejudice to be suffered, if any, would be discernible then.
5. On the leave to file a supplementary record of appeal containing the proceedings of the High Court and Court of Appeal, the same were not available at the time of filing the record of appeal. The unavailability of the proceedings of the superior courts below and the time taken to secure them was not attributed to the fault of the applicant. The respondent had not controverted that limb of argument or demonstrated any likely prejudice if that prayer was granted. That rendered the prayer as one that was merited.
6. The interest of justice was best served by allowing the amendment of the petition and for the petitioner to file the supplementary record containing the proceedings before the superior courts below for the purposes of placing before the court all matters in controversy for the courts determination.