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.