Mohammed Khadhar Ibrahim, William Ouko, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu
Kabuito Contractors Ltd v Attorney General (Civil Application E025 of 2023)  KESC 89 (KLR) (Civ) (6 October 2023) (Ruling)
The guiding principles for the review of a decision of the Supreme Court
The application sought the review and setting aside of the order of May 26, 2023 by a single judge of the court (the judge) marking the notice of appeal dated March 8, 2023 from the decision of the Court of Appeal in Civil Appeal No. 638 of 2019, Attorney General v Kabuito Contractors Ltd as withdrawn. The applicant contended that on March 10, 2023, it filed a notice of appeal before the instant court evincing his intention to appeal against the decision of the Court of Appeal. The applicant further contended that the matters in dispute were of general public importance.
The applicant stated that it filed an application for certification dated March 31, 2023 at the Court of Appeal and that by May 22, 2023 the Court of Appeal had not issued directions on the application for certification. The applicant further averred that on May 26, 2023, the court (the judge) issued an order deeming the notice of appeal filed before the court withdrawn for failure to file an appeal within the period stipulated by the Supreme Court Rules.
i. What were the guiding principles for review of a decision of the Supreme Court made in exercise of discretion?
Relevant provisions of the law
Supreme Court Rules, 2020
Rule 36 - Notice of Appeal
(1) A person who intends to make an appeal to the Court shall file a notice of appeal within fourteen days from the date of judgment or ruling which is the subject of appeal.
(4) In lodging an appeal on a matter of general public importance, it shall not be mandatory to obtain such certification before filing the notice of appeal.
Rule 38 - Institution of appeal
(1) An appeal to the Court shall be filed within
(a) thirty days of the date of filing the notice of appeal, where the appeal is as of right; or
(b) thirty days after the grant of certification, where such certification is required.
1. Section 23(C) of the Supreme Court Act conferred upon the court the jurisdiction to review the decision of a single judge by five or more judges, upon application by a party aggrieved by the decision of a single judge. The guiding principles for review of a decision of the court made in exercise of discretion were that the applicant had to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise of discretion and;
- as a result a wrong decision was arrived at; or
- it was manifest from the decision as a whole that the judge had been clearly wrong and as a result, there had been an apparent injustice.
2. The applicant contended that the order of May 26, 2023 deeming the notice of appeal as withdrawn was made by the single judge, unaware of the pending certification application at the Court of Appeal. The court had discretion under rule 46(1) of the Supreme Court Rules, 2020 on its own motion, or on application by any party, to make such orders as may be necessary in instances where a party lodged a notice of appeal but failed to institute the appeal within the prescribed time.
3. The applicant had not satisfactorily demonstrated that the judge misdirected himself in the exercise of the powers conferred under rule 46(1) of the Supreme Court Rules. It was not manifest from the decision that the judge was wrong and as a result, there had been an apparent injustice. Although the applicant had attached a notice of appeal and an application for certification at the Court of Appeal, there was no evidence that the notice, though filed, was lodged before the Registrar of the Court of Appeal or that the application for certification filed at the Court of Appeal was eventually lodged.
4. The applicant made no attempt to justify the continued existence of the notice of appeal on the courts record for a period outside that permitted by rules 36 and 38 of the Supreme Court Rules. The belated explanation by the applicant did not suffice at that late stage. In any event, if the application before the Court of Appeal succeeded -if it existed at all- the applicant would have sufficient time to move the court under the relevant rule and if it did not succeed, the procedure for review of that decision was available to the applicant. The notice of appeal was deemed as withdrawn.