County Executive Of Kisumu V County Government Of Kisumu & 8 Others  EKLR
|Civil Application 3 of 2016||12 Apr 2017|
Mohammed Khadhar Ibrahim, Smokin C Wanjala
Supreme Court of Kenya
County Executive of Kisumu v County Government of Kisumu ,Gabriel Ochieng , Kisumu County Assembly Service Board , Ann Atieno Adul , Nicholas Stephen Okala , Attorney General ,Nelco Musanya Sagwe , Peter Odero Anditi & Eluid Owen Ojuok
County Executive of Kisumu v County Government of Kisumu & 8 others  eKLR
Extension of time is an Equitable remedy to be issued at the Discretion of the Court.
County Executive of Kisumu v County Government of Kisumu & 8 others
Civil Application No 3 of 2016
Supreme Court of Kenya
M Ibrahim, S Wanjala SCJJ
April 12, 2017
Reported by Phoebe Ida Ayaya
Civil Practice and Procedure – extension of time – application for extension of time within which to file an appeal to the Supreme Court – grounds for allowing extension of time within which to file an appeal- the circumstances in which a court may grant orders for extension of time to litigants-whether the Applicant could rely on the Civil Procedure Rules when making his application to extend time vis a vis the regime of law that governed proceedings before the Supreme Court- whether there would be any prejudice suffered by the Respondents if the extension was granted - Civil Procedure Rules order 50 ; Supreme Court Rules rule 33(6)
Aggrieved by a decision of the Court of Appeal, the Applicant filed a notice of appeal at the instant Court on October, 2015. The notice of appeal was accompanied by a letter addressed to the Registrar requesting for typed copies of the proceedings and the Judges’ notes, which documents formed part of the record of appeal as a mandatory requirement. The typed copies of the proceedings were however, only furnished to the Applicant on December 4, 2015, outside the time limitation period provided by the Rules of the Court for filing an appeal. A certificate of delay by the Deputy Registrar was supplied on December 16, 2015. Hence, it was submitted that the delay was due to reasons beyond the Applicant’s control.
The application was also based on the ground that it was in the best public interest that the appeal herein be heard for the enrichment of jurisprudence. The appeal had been brought by a State organ as against another and as such, it was in the best public interest that the appeal be heard and determined on merit. Lastly, it was stated that the appeal had been lodged without inordinate delay and the Respondents stood to suffer no prejudice whatsoever if the application was allowed.
- What were the circumstances in which a court may grant orders for extension of time to litigants?
- Whether the Applicant could rely on the Civil Procedure Rules when making his application to extend time vis a vis the regime of law that governed proceedings before the Supreme Court.
- Whether there would be any prejudice suffered by the Respondents if the extension was granted.
- In an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the Court. The Court settled the principles that were to guide it in the exercise of its discretion to extend time. The Court delineated the following as the under-lying principles that a Court should consider in exercise of such discretion: -
i. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
ii. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
iii. The Court’s exercise of its discretion to extend time, is a consideration to be made on a case to case basis;
iv. Where there is a sensible reason for the delay, the delay should be explained to the satisfaction of the Court;
v. Whether there will be any prejudice suffered by the respondents if the extension is granted;
vi. Whether the application has been brought without undue delay; and
vii. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
- A ground of delay of getting typed proceedings was not a prima facie panacea in the case of delay whenever it was pleaded. Each case had to be determined on its own merit and all relevant circumstances considered. It was worth reiterating that in considering whether or not to extend time, the whole period of delay was to be stated and explained to the satisfaction of the Court.
- In the instant case, while there was indeed a certificate of delay from the Deputy Registrar of the Court of Appeal, that alone did not suffice for the Court to indulge the Applicant and grant an extension. The proceedings were availed to the Applicant on December 4, 2015. It filed its application more than two months later. While it submitted that it filed the application on February 8, 2016, the record from the receipt of payment and the stamp on the face of the application showed that the application was filed on February 12, 2016.
- The regime of law that governed proceedings before the Supreme Court was the Constitution, Supreme Court Act, the Supreme Court Rules, 2012 and any practice directions made by the Court or by the Chief Justice. The Civil Procedure Rules were not applicable. Consequently, the Applicant could not rely on the provisions of the Civil Procedure Act to submit that time was not running.
- In filing the notice of appeal on time, the counsel had already received instructions to appeal. In seeking the typed proceedings, counsel was acting under the instructions that he should appeal; hence he had started the process of preparing the record of appeal as early as October, 2015. Having filed a notice of appeal, having requested and received typed proceedings, and also having requested and been issued with a certificate of delay, it could not be probable that counsel was yet to get instructions from the Applicant to lodge an appeal.
- The Applicant had an option of filing a timely petition of appeal and putting in those documents which ordinarily should form part of the record of appeal but were not there through a supplementary record of appeal. That procedure was provided for by rule 33(6) of the Court Rules which allowed for filing of the requisite documents late, but without leave.
- Whether the Court would have refused to accept the filing a supplementary record of appeal delayed for a day or two was not an issue here but at the very least, that would have demonstrated some vigilance on the Applicant’s side. The applicant did not satisfactorily explain the inordinate delay of two months upon receipt of the typed proceedings.
- Whereas the issues as highlighted were germane and novel, that alone could not be a reason for grant of extension. The Court would not admit a matter for hearing on the premise of the novelty of a matter, but upon due exercise of its jurisdiction and within the laid out legal framework. Arguability of a matter was not a ground alone for extension of time.
- An appeal filed in the Court out of time without leave of the Court was irregular and the Court could not invoke such ‘novel’ principles so as to validate that petition and deem it as properly filed. Pursuant to rule 33(1) of the Supreme Court Rules, it was mandatory that an appeal could only be filed within 30 days of filing the notice of appeal. Under rule 53 of the Court’s Rules, the Court indeed extended time. However, it could not be gainsaid that where the law provided for the time within which something ought to be done, if that time lapsed, one needed to first seek extension of that time before he could proceed to do that which the law required. By filing an appeal out of time before seeking extension of time, and subsequently seeking the Court to extend time and recognize such ‘an appeal’, was tantamount to moving the Court to remedy an illegality. That, the Court could not do.
- To file an appeal out of time and seek the Court to extend time was presumptive and in-appropriate. No appeal could be filed out of time without leave of the Court. Such a filing rendered the ‘document’ so filed a nullity and of no legal consequence. Consequently, the Court could not accept a document filed out of time without leave of the Court. Where one intended to file an appeal out of time and sought extension of time, the least he could do was to annex the draft intended petition of appeal for the Court’s perusal when making his application for extension of time; and not to file an appeal and sought to legalize it.
- If the Court was to grant extension of time in the matter, it would not hesitate to accede to the Respondents’ request, if the same was found to be the position that a petition of appeal had in fact been filed in the Court without leave of Court extending time.
- On perusal of the Court Registry records there was no evidence of a petition of appeal already filed in the matter. From the application before the Court, the Applicant stated that it had already filed a petition of appeal and urged that the Court were inclined to extend time, to deem that petition of appeal as properly filed. It then appeared to change tune in its written submissions when it stated that the ‘said appeal’ be taken as a draft for purposes of showing urgency of the matter.
- It was upon the Court Registrar to check against such scenarios. Whatever it was that happened in the matter was to be investigated and not allowed to recur. However, as the Court was unable to trace the said petition in the Court’s records at the registry it was of the position that there was no petition of appeal already filed in the matter, hence the issue rested there.
Application dismissed and Applicant to bear costs of the 3rd, 4th, 7th and 8th Respondents.