Supreme Court declines to grant an extension of time where the delay was not explained to its satisfaction.

Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 2 others [2019] eKLR

Application 1 of 2014

Supreme Court of Kenya

SC Wanjala, SCJ

December 17, 2019

Reported by Mathenge Mukundi

Civil Practice and Procedure - applications - application for extension of time to file and serve a reference out of time against the taxation ruling and orders of the Supreme Court – limitation period for filing the application – where it was alleged that the delay was occasioned by the Supreme Court Registry failure to furnish the applicants with a copy of the taxation ruling and typed proceedings – whether the applicants explained the delay in filing and serving a reference against the taxation ruling and orders of the Supreme Court to its satisfaction - Supreme Court Rules, 2012, rules 21, 49 and 53.

Brief facts

The applicants sought an extension of time to file a reference against the taxation ruling and orders of the Supreme Court, submitting that the delay was occasioned by the Supreme Court registry’s delay in furnishing them with a copy of the typed proceedings.

The respondents contended that a copy of the ruling and typed proceedings were not required to file a reference on taxation under rule 49 (1) of the Supreme Court Rules. Even after being furnished with a copy of the ruling and typed proceedings, the applicants had not explained the 30-day delay in filing the taxation reference and that the application was an afterthought brought with an aim to delay the cause hence an abuse of court process.

Issue

 Whether the applicants explained the delay in filing and serving a reference against the taxation ruling and orders of the Supreme Court to its satisfaction.

Held

A copy of the ruling and typed proceedings were availed to the applicants on May 17, 2018, and yet, it was not until June 12, 2018, that they filed the application for extension of time. The applicants contended that the 27-day delay was the time it took them, to prepare the application for extension of time. Such an explanation was neither reasonable nor credible.

Application dismissed with costs to the respondents.

Community Uplift Ministries INC v Nathan Chesang Moson & 2 others

Application No 10 of 2016

Supreme Court of Kenya

S C Wanjala & S N Ndung’u, SCJJ

May 9, 2017

Reported by Nelson Tunoi

Civil practice and procedure – stay – application for stay of execution – application seeking to stay the execution of Court of Appeal decision setting aside the appointment of Receiver/Interim Manager to take care of the affairs, business and property of the 3^rd respondent – whether the Supreme Court had jurisdiction to grant the order of stay in the circumstances – whether the application had merit

Brief facts:

The Applicant filed a plaint in the High Court against the Respondents seeking the transfer and possession of all the assets of the 3^rd Respondent and a declaration that the 1^st and 2^nd Respondents had illegally appropriated the assets registered in the name of 3^rd Respondent.

Simultaneously to the filing of the plaint, the Applicant lodged an application seeking interim orders that the High Court appoints a Receiver/Interim Manager of the affairs, business and property of the 3^rd Respondent pending determination of the suit and that the possession and custody of the affairs, business and property of the 3^rd Respondent be committed to the Receiver. The application was heard and the High Court held that the Applicant had established a prima facie case with a probability of success warranting the granting of an order of temporary injunction for purposes of preserving the suit property pending determination of the case. Further, the High Court appointed a Receiver Manager to take charge of the affairs, business and property of the 3^rd Respondent on a temporary basis.

Aggrieved by that decision, the Respondents filed an appeal faulting the legal consideration of the High Court in granting the interim orders. Upon consideration, the Court of Appeal found that there was no basis upon which the High Court appointed a Receiver Manager at that interlocutory stage and consequently set aside his appointment.

The Applicant filed the instant application seeking a stay of execution of part of the Court of Appeal decision which lifted the orders of the High Court appointing a Receiver Manager.

Issues:

i. Whether the Supreme Court had jurisdiction to entertain an application for stay of execution against the decision of the Court of Appeal which lifted the High Court orders requiring the appointment of a Receiver Manager.

ii. Whether a stay of execution should be granted against the decision of the Court of Appeal which lifted the High Court orders requiring the appointment of a Receiver Manager.

Held:

1. The extent to which a matter qualified for admission to the Supreme Court under article 163(4)(a) of the Constitution had been the subject of judicial interpretation by the Supreme Court. A question involving the interpretation or application of the Constitution that was integrally linked to the main cause in a Superior Court of first instance, was to be resolved at that forum in the first place, before an appeal could be entertained.

2. It was an undisputed fact that the plaint in the matter filed over six years ago was still pending at the High Court for determination. Therefore, the application before the Supreme Court involved a dispute that had yet to be canvassed in the Superior courts and hence the Supreme Court had no jurisdiction to hear it.

Application dismissed, each party to bear its own costs.

Only Parties privy to the proceedings in the Superior Courts below the Supreme Court may file an appeal to the Supreme Court.

Jennifer Koinante Kitarpei v Alice Wahito Ndegwa & another [2015] eKLR

Supreme Court of Kenya

Petition No 32 of 2014

July 22, 2015

S Wanjala & S N Ndung’u SCJJ

Reported by Teddy Musiga and John Ribia

Brief facts:

The 1^st respondent together with three others not enjoined in this suit filed a petition at the High Court seeking orders that the 2^nd respondent do include the names of the 1^st respondent and three others in the final list of nominees for various County Assemblies. The High Court dismissed that petition. The 1^st respondent being dissatisfied with that decision appealed to the Court of Appeal. However, the appellant in the instant matter was not enjoined as a party to that appeal. The Court of Appeal allowed that appeal with orders that the Independent Electoral & Boundaries Commission gazette the 1^st respondent as the duly elected special member under the general category for Laikipia County Assembly. Being dissatisfied with that Court of Appeal decision, the appellant in the instant matter filed an application before the Court of Appeal seeking orders to set it aside. The Court of Appeal dismissed it holding that the appellant lacked standing to apply for review since she was not a party in the matter before that Court or the High Court. She then filed a petition of appeal to the instant Court, the Supreme Court.

The appellant sought redress in the Supreme Court by invoking article 163(4)(a) of the Constitution of Kenya 2010. The respondent via a notice of motion raised a preliminary objection on the grounds that the appellant’s right of appeal was extinguished and that the appellant had not demonstrated that the appeal fell within the ambit of article 163(4) (a) of the Constitution of Kenya, 2010.

Issues:

1. Whether the Supreme Court had the jurisdiction to entertain an appeal under article 163(4)(a) of the Constitution of Kenya 2010, where a party who was not a party to the proceedings forming the subject of appeal but had been affected by that decision.
2. Whether a party not subject to the proceedings in a Superior Court could file an Appeal at the Supreme Court.

Constitutional Law – jurisdiction – appeals - appeals to the Supreme Court – appellate jurisdiction of the Supreme Court - Whether a party not subject to the proceedings in a Superior Court could file an Appeal at the Supreme Court - whether the Supreme Court had the jurisdiction to entertain an appeal where the appellant was not a party to the proceedings forming the subject of appeal but had been affected by that decision – Constitution of Kenya 2010 article 163(4(a).

Constitution of Kenya, 2010

Article 163(4)(a)

Appeals shall lie from the Court of Appeal to the Supreme Court—

1. As of right in any case involving the interpretation or application of this Constitution.

Held:

1. For appeals to fall under the ambit of article 163(4)(a) of the Constitution of Kenya, 2010, they had to originate from a Court of appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant had to be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party had to be faulting the Court of Appeal on the basis of such. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it could not support a further appeal to the Supreme Court under the provisions of article 163 (4) (a) of the Constitution of Kenya, 2010.
2. The basis upon which the appellant had appealed to the instant Court was not on the application or interpretation of the Constitution by the Court of Appeal in arriving at its determination, but rather the fact that she was affected by the judgment of the Court of Appeal in a matter where she was not a party to the proceedings.
3. As much as the appellant could have had a legitimate claim that the judgment of the appellate Court affected her interests, even though she was not a party to the suit, such an issue, in the first instance, fell outside the jurisdiction of the Court. The Constitution plainly conferred jurisdiction upon the High Court to deal with such a claim in the first instance. The Court could not arrogate to itself jurisdiction that was reposed in another Court.
4. The Supreme Court had no jurisdiction to entertain the petition of Appeal. It was not plausible that the Jurisdiction of the Supreme Court as was enshrined under article 163(4)(a) of the Constitution of Kenya 2010, contemplated that a person who was not party to the proceedings at the superior Courts below the Supreme Court, would file an appeal. The subject matter of the appeal did not meet the criteria set out under the article 163(4)(a) of the Constitution of Kenya 2010.

Preliminary objection allowed, petition dismissed and parties were to bear their own costs.

An appeal against a Court of Appeal decision declining to extend time was not a matter falling under the purview of article 163(4)(a) of the Constitution.

Basil Criticos v Independent Electoral and Boundaries Commission & 2 others

Petition 22 of 2014

Supreme Court of Kenya at Nairobi

S C Wanjala& S N Ndungu, SCJJ

June 24, 2015

Reported by Nelson Tunoi& John Ribia Wainaina

Brief facts:

The petitioner had filed an election petition before the High Court but was unsuccessful and costs awarded to the respondents. The petitioner filed a notice of appeal giving notice of an intended appeal against the High Court judgment. After the lapse of the statutory period of thirty (30) days, the petitioner filed an application for extension of time to file his appeal on grounds that there was delay in obtaining certified proceedings from the High Court. The application was dismissed by a single judge of the Court of Appeal and the applicant filed for a reference of a full bench of the Court of Appeal, but which application was consequently dismissed.

Pursuant to filing a petition of appeal against the ruling and orders of the Court of Appeal, the petitioner subsequently filed a notice of motion under certificate of urgency seeking to stay the execution of the ruling and orders of the Court of Appeal and the judgment and orders of the High Courtpending the hearing and determination of the appeal. The application was heard ex parte and orders of stay issued by the Supreme Court. The respondents through a preliminary objection application sought to have the order of stay vacated.

Issues:

1. Whether an appeal against the denial extension of time by the Court of Appeal could be heard in the Supreme Court as a matter of right as a case involving the interpretation or application of the constitution,  on the basis of Article 163 (4)(a) of the Constitution.
2. Whether an order of stay of execution could be sustained on the basis of article 163(4)(a) of the Constitution.

Jurisdiction – appellate jurisdiction of the Supreme Court – appellate jurisdiction of the Supreme Court in matters involving the interpretation and application of the Constitution - whether the Supreme Court could extend time for an intending appellant to lodge an appeal at the Court of Appeal – where the Court of Appeal had declined to extend time for the applicant to lodge his appeal –whether an appeal against a Court of Appeal decision declining to extend time was a matter falling under the purview of article 163(4)(a) of the Constitution - Constitution of Kenya, 2010, article 163(4)(a)

Civil practice and procedure – preliminary objection –respondents objecting to the stay orders issued by a single judge of the Supreme Court –whether the Supreme Court could issue stay of execution of the lower courts orders in the circumstances - whether a preliminary objection application was sustainable on the basis of article 163(4)(a) of the Constitution –whether the application was merited – Constitution of Kenya, 2010, article 163(4)(a)

Constitution of Kenya, 2010, article 163(4):

Appeals shall lie from the Court of Appeal to the Supreme Court;

(a) as of right in any case involving the interpretation or application of this Constitution; and

(b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause

Held:

1. An appeal against a Court of Appeal decision declining to extend time was not a matter falling under the purview of article 163(4)(a) of the Constitution, as a matter of right as a case involving the interpretation or application of the constitution,  on the basis of Article 163 (4)(a) of the Constitution.
2. The petitioner had not kept due diligence in filing his appeal against the High Court decision.He waited until the expiry of the prescribed time for filing an appeal then filed an application for extension of time to file his appeal, which application was dismissed by the Court of Appeal.
3. The application (notice of motion) before the Supreme Court amounted to an appeal against the ruling of the Court of Appeal. The petitioner (applicant) was “appealing” against the denial of extension of time by the Court of Appeal. The substantive appeal was yet to be filed.
4. Extension of time was an equitable dispensation. It was a creature of equity that could be enjoyed if one acted equitably. It was not a right of a litigant against a court, but a discretionary power of the courts.
5. An appeal against a Court of Appeal decision declining to extend time was not a matter falling under the purview of article 163(4)(a) of the Constitution.The Supreme Court would not be sitting on appeal in the absence of a judgment by the Court of Appeal, in which constitutional issues had been canvassed.
6. An order of stay would only issue from the Supreme Court to preserve either the subject matter of an appeal or the appeal itself. If interlocutory applications were excluded as a necessary step to preserve the subject-matter of an appeal, the Supreme Court’s capability to arrive at a just decision on the merits of an appeal would be substantially diminished. Both the Constitution and the Supreme Court Act granted the Court the appellate jurisdiction; and within that jurisdiction, the parties were at liberty to seek interlocutory reliefs, in a proper case.
7. The application before the Supreme Court could not be saved by the principles governing stay of execution. The application was actually premised upon an intended appeal that existed in a vacuum.It was an application that, were it to be allowed, would have the effect of compelling the Court of Appeal to exercise a discretion of which it was itself the lawful repository. Such would perversely affect the vital principle of unconstrained decisional liberty for every Court and every Bench.
8. It was clear that the grant of stay orders did not benefit from an all-round set of submissions. There was no opportunity, in the circumstances, to consider vital questions relating to the Supreme Court’s jurisdiction as regards the exercise of purely discretionary powers by other Courts. That was a proper basis for vacating the said Orders.

Preliminary objection allowed; ex parte orders issued by Supreme Court vacated; notice of motion dismissed; petitioner to bear the costs of the application.

Cases

East Africa

 1. Anami Silverse Lisamula v Independent Electoral and Boundaries Commision & 2 others Petition No 9 of 2014 – (Explained)

2. Board of Governors, Moi High School, Kabarak & another v Malcolm Bell Applications Nos 12 and 13 of 2012 – (Followed)

3. Erad Suppliers & General Contractors Limited v National Cereals & Produce Board [2012] 2 KLR 454– (Mentioned)

4. Gatirau, Peter Munya v Dickson Mwenda Kithinji & 2 others Petition No 2B of 2014 – (Followed)

 Joho, Hassan Ali & another v Suleiman Said Shahbal & 2 others Petition No 10 of 2013 – (Explained)

 5. Kenya Section of the International Commission of Jurists v Attorney-General & 2 others [2012] 3 KLR 436 - (Mentioned)

6. Kidero, Evans Odhiambo & 5 others v Ferdinand Ndungu Waititu & 4 other Petition No 18 of 2014 (Consolidated with Petition No 20 of 2014 – (Mentioned)

7.  Macharia, Samuel & another v Kenya Commercial Bank Limited & 2 others [2012] 3 KLR 199– (Mentioned)

 8. Malcom Bell v Daniel Torotich Arap Moi & another Application No 1 of 2013 – (Mentioned)

 9. Munene, Mary Wambui v Peter Gichuki King’ara & 2 others Petition No 7 of 2014- (Explained)

10. Munya and Hon Lemanken Aramat v Harun M Lempaka & 2 others Petition No 5 of 2014 – (Explained)

 11. Ndeti, Wavinya v Independent Electoral & Boundaries Commission & 4 others Civil Appeal No 323 of 2013 – (Mentioned)

12.  Nduttu & 6000 v Kenya Breweries Ltd & another [2012] 2 KLR 804– (Mentioned)

13. Ngoge v Francis Ole Kaparo [2012] 2 KLR 419 - (Mentioned)

14. Salat, Nick Kiptoo Arap Korir v Independent Electoral & Boundaries Commission & 7 others Application No 16 of 2014 – (Followed)

Nigeria

1. All Progressive Grand Alliance v Senate Christiana ND Anyanwu & 2 others LER (2014) SC 20/2013 – (Explained)

Ireland

1.  A v Governor of Arbour Hill Prison 2006 (IESC 45) [2006] IEHC 169, [2006 No 694 SS]; [2006] IESC 45 - (Explained)

Statutes

East Africa

1. Constitution articles 25(c);27(1); 48; 50(1); 87(2);105;140; 159; 163(4)(a)(b); 164;259(a)(e)(8) - (Interpreted)

2. Appellate Jurisdiction Act (cap 9) sections 3A, 3B - (Interpreted)

3. Court of Appeal Rules, 2010 (cap9 Sub Leg) rules 4, 26, 47, 82 - (Interpreted)

4. Elections Act, 2011 (Act No 24 of 2011) sections 76(1) (a); 85A - (Interpreted)

Advocates

1. Mr Lubulellah for the 1^st and 2^nd respondents

2. Mr Nyakundi for the 3^rd Respondent

3. Mr Gichuhi for the Petitioner

Supreme court allows application for stay of execution from the Court of appeal’s decision concerning election of Shinyalu constituency parliamentarian

Anami SilverseLisamula v Independent Electoral & Boundaries Commission & 2 others

In the Supreme Court of Kenya at Nairobi

Petition No. 9 of 2014

 S C Wanjala& S N Njoki, SCJJ

June 3, 2014

Reported by Teddy Musiga and Getrude Serem

Issues:

1. Whether every election petition decisions were appealable to the Supreme court under article 163(4) of the Supreme Court’s appellate jurisdiction.
2. What are the conditions for granting orders of stay of execution?
3. Whether there were instances in which orders of stay of execution could be granted in the public interest.

Jurisdiction – Supreme Court’s appellate jurisdiction – supreme court’s appellate jurisdiction in entertaining electoral appeals from the court of appeal – jurisdiction of the supreme court to interpret constitutional issues – whether every election petition dispute is appealable to the supreme court – Constitution of Kenya, 2010 article 163 (4) (a)

Civil Practice and Procedure – execution of judgments – application for stay of execution – conditions for granting a stay of execution – stay of execution granted in the public interest – claim where the election appeal would have been rendered nugatory were stay not granted.

Held:

1. Not every election petition decision was appealable to the Supreme court under article 163(4) (a) of the Constitution of Kenya, 2010. Under the basis of the above article the issues decided in the Court of Appeal, which were then brought up on further appeal to the Supreme court had to be rested on constitutional interpretation.
2. Out of the applicant’s allegations that the Court of Appeal exceeded its jurisdiction under articles 87(2) and 163(4) of the Constitution, 2010 as it did not have jurisdiction to hear an appeal as it raised constitutional issues requiring the interpretation of those constitutional provisions hence making the matter a constitutional matter.
3. The issue of jurisdiction went to the backbone of the Supreme Court’s authority to hear and determine the petition and which if determined had the effect of either disposing off the entire appeal or setting down the appeal for full hearing. Therefore, the Supreme Court had jurisdiction to entertain the matter under article 163(4)(a) of the Constitution of Kenya, 2010.
4. The court could grant orders of stay of execution pending the hearing and determination of the appeal if:

1. The appeal or intended appeal was arguable and not frivolous.
2. Unless the order of stay sought was granted, the appeal or intended appeal, were it eventually to succeed, would have been rendered nugatory.

5. The least that a party/applicant needed to show was that his/her appeal had taken a trajectory of constitutional interpretation or application. Having established that, the instant petition was prima facie arguable and further that the orders of stay of execution were not granted, the appeal would have been rendered nugatory.
6. It was in the public interest to grant orders of stay. Orders of stay were to be granted in any case where there was a prospect of expenditure of public funds in an electoral exercise, the outcome of which could be rendered unnecessary.

The applicant’s Notice of Motion was allowed.

 Execution of the whole judgment and/or orders of the Court of Appeal was hereby stayed pending the hearing and determination of the appeal.

A conservatory Order was issued against the Speaker of the National Assembly or any other person, from  issuing a writ to the 2^nd respondent regarding the conduct of fresh election, pending the hearing and determination of the appeal.

A conservatory Order was issued against the 2^nd respondent from announcing and/or conducting elections for Shinyalu Constituency, pending the hearing and determination of the appeal.

The matter was to be placed before the Registrar to allocate the earliest available dates for a hearing before a full Bench.

Cases

East Africa

1.Anarita Karimi Njeru v Republic (No 1) [1976-1980] 1 KLR 1272 –(Applied)

2.Joho, Hassan Ali & another v Suleiman Said Shahbal & 2 others Petition No 10 of 2013 –(Applied)

3.Munya, Gatirau Peter v Dickson Kithinji & 2 others Application No 5 of 2014 –(Applied)

4.National Bank of Kenya v Ayah [2009] KLR 762–(Explained)

5.Nduttu, Lawrence & 6000 others v Kenya Breweries Ltd & another Petition No 3 of 2012 –(Applied)

6.Ngoge, Peter Oduor v Francis Ole Kaparo & others Petition No 2 of 2012 –(Explained)

7.Outa, Fredrick Otieno v Independent Electoral Boundaries & others Civil Application No 10 of 2014 –(Explained)

8.Wanjohi, George Mike v Steven Kariuki Civil Application No 6 of 2014 –(Applied)

Statutes

East Africa

1.Constitution of Kenya, 2010 articles 5, 10, 20(1); 25(c); 27(1); 38(2); 50(1); 73; 75; 81(e); 86; 87(1)(2); 88, 101; 138(4); 163(4)(a),(7) -(Interpreted)

2.Elections Act, 2011 (Act No 24 of 2011) sections 59, 60, 61, 62, 74, 76, 79, 82, 85A, 87-(Interpreted)

Advocates

1.Mr Lubulellah for the Applicant

2.Mr Mukele for the 2^nd & 3^rd Respondents

An appellant whose petition is consolidated with another need not to file records of appeal together with the petition of appeal

Law Society of Kenya v Centre for Human Rights and Democracy& 12 others

Petition Number 14 of 2013

Supreme Court of Kenya

SC Wanjala, SN Ndungu, SCJJ

April 8, 2014

Reported by Lynette A. Jakakimba & Valarie Adhiambo

Brief Facts

The Law Society of Kenya (the applicants) had been joined as an interested party in Petition No 11 of 2012 in which it raised a preliminary objection challenging the jurisdiction of the High Court to hear and determine matters relating to the findings of unsuitability to hold office by the Judges and Magistrates Vetting Board (JMVB). The High Court dismissed the preliminary objection asserting its supervisory jurisdiction in matters arising from the vetting process. Aggrieved by the decision the applicant appealed to the Court of Appeal which dismissed the appeal. Following the dismissal by the Court of Appeal, 3 appeals were filed in the Supreme Court appealing the same decision that was Petition No 13A of 2013, Petition No 12 of 2013 (LSK) and Petition No 15 of 2013. However the applicants did not file records of appeal to accompany its petition of appeal but made an application in which it sought to rely on the records of appeal filed in Civil Appeal No 308 of 2013 and supplementary records of appeal filed in the Supreme Court Petition No 15 of 2013 for purposes of determination of the appeal. Further the applicant sought to have the court consolidate Petition No 14 of 2013 and the related Petition No 15 of 2013.The first prayer of relying on the record of appeal filed in Civil Appeal No 308 of 2013 and supplementary records of appeal filed in the Supreme Court Petition No 15 of 2013 was determined and this application thus was to determine the issue of consolidation of the petitions.

Issues

1. Whether failure to file records of appeal together with the petitions of appeal meant no appeal existed.
2. Whether different petitions with one main issue running through them could be consolidated.
3. Whether if two petitions were consolidated the court could dispense with the requirement of filing records of appeal together with the petition of appeal by one party who omits to file records of appeal together with the petition.

Civil Practice and Procedure-appeals- appeals to the Supreme Court-documents to accompany a petition of appeal-whether the failure to file records of appeal together with the petition of appeal meant no appeal existed Supreme Court Rules, rule 33 (1)

Civil Practice and Procedure-joinder of suits-when can causes of action be consolidated in a suit-whether different petitions with one main issue running through them could be consolidated

Supreme Court Rule

  Rule 33

“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”

Held

1. The use of the word ‘shall’ in rule 33(1) of the Supreme Court Rules suggested that the rule was mandatory in nature, requiring strict adherence to the components of the rule  thus, a strict reading of the rule led to the conclusion that an appeal comprised the petition of appeal, the record of appeal, and the prescribed fee.

2. In an application for consolidation what were to be consolidated were the petitions of appeal, as it was the petition that disclosed grievances against the decision appealed from and therefore it was in order for the applicant to ask the court to consolidate its grievance, as disclosed in its petition of appeal, with that in Petition No. 15 because they were similar not only of the nature of the grievance, but also of the issues they raised.
3. The absence of the record of appeal was not a barrier to consolidation at this stage of the proceedings since the petition of appeal filed by the applicant disclosed a clear cause of action that could be practicably and jointly prosecuted together with that in Petition No. 15.
4. The essence of consolidation was to facilitate the efficient and expeditious disposal of disputes, and to provide a framework for a fair and impartial dispensation of justice to the parties, consolidation was therefore never meant to confer any undue advantage upon the party that sought it, nor to occasion any disadvantage towards the party that opposed it.
5. This was an application where the provisions of article 159(2) (d) of the Constitution were applicable to save an appeal from waste occasioned by failure to observe one limb of a procedural rule and given that no party was to be prejudiced if the applicant was allowed to rely on the records of appeal filed in Petition No 15 of 2013 no purpose in furtherance of the course of justice would be served, by compelling the applicant to file the same record of appeal.

Orders

i. Petitions of Appeal Numbers 13A, 14 and 15 are consolidated.

 ii. Applicant allowed to rely on the record of appeal lodged in the Registry by the 4^th respondent.

 iii.   Petition No. 13A of 2013 =to serve as the Pilot File in the-proceedings.

 iv. Appellants to file their written submissions within 7 days from the date hereof; and the submissions so filed are to be served upon the respondents within 7 days as from the date of filing.

v. The respondents are to file their written responses within 7 days after service; and the responses so filed are to be served upon the appellants within 7 days of the date of filing.

 vi. The appellants are to file and serve any written responses within 7 days from the date of service.

 vii. The matter is to be mentioned on 24^th April, 2014 before the Deputy Registrar of the Supreme Court, to confirm compliance and to fix hearing dates.

Cases
East Africa
1. Kibiwot, Joana Chepkurui v Micah Cheboi Kibiwot Civil Appeal 21 of 2005- (Mentioned)
2. Nyati Security Guards & Services v Municipal Council of Mombasa Civil Suit No 992 of 1994 - (Mentioned)
3. Odinga ,Raila & 5 others v Independent Electoral & Boundaries Commission  & 3 others  Petition No 5 of 2013 - (Mentioned)
4. Okebe, David Ojwang’ & 11 others v South Nyanza Sugar Company Limited & 2 others Civil Appeal (Appli) 139 of 2008 (KSM 18/08) - (Mentioned)
Statutes
East Africa
1. Constitution of Kenya,2010 article 159(2)(d) - (Interpreted)

2.  Constitution, 2010 section 23(2) of the sixth schedule - (Interpreted)
3.  Supreme Court Act, 2011(Act No 7 of 2011) section 32(1) - (Interpreted)
4.  Supreme Court Rules 2012 (Act No 7 of 2011 Sub Leg)  rules  33(1)(6);37(1);55- (Interpreted)

Texts & Journals
1. Garner BA., (Ed) (2004) Black’s Law Dictionary  London: West Group 8th Edn

Reported By Njeri Githang’a Kamau

Brief Facts

The preliminary objection was filed by the 1st respondent seeking the dismissal of an appeal filed in the court on November 20, 2012 by the applicant/petitioner challenging the decision of the Court of Appeal in the matter.

Leave to appeal to the Supreme Court had been granted on the basis that the intended appeal raised weighty issues of general public importance relating to the law of international child abduction.

The appellant filed a Notice of Appeal before the Supreme Court on 20th November 2012 and a Petition of Appeal on the 5th February 2013 under Rules 9, 33 and 42 of the Supreme Court Rules and the inherent powers of the Court.

The preliminary objection was raised on the grounds that the appeal was filed out of time; the matters raised in the petition were not matters of general public importance, and that; the Court did not have jurisdiction to entertain the matter.

Issues

1. Whether the court could allow the preliminary objection considering that the matter at hand was one where the Court had been called upon to determine if the questions raised were of general public importance while the court was yet to pronounce itself on what constitutes a matter   of general public importance under Article 163(4) (b) of the Constitution of Kenya, 2010.  

2. Whether the Supreme Court under Rule 53 of the Supreme Court Rules had power to extend the time limited by the rules.

3. Whether the Court could disregard procedural technicalities in favour of substantive justice having regard to all relevant circumstances obtaining in the case.

Civil practice and procedure-notice of appeal-time within which to file-preliminary objection on the ground that the appeal was filed out of time and that the matters raised in the petition were not matters of general public importance- Whether the Supreme Court under Rule 53 of the Supreme Court Rules had power to extend the time limited by the rules- Whether the Court could disregard procedural technicalities - whether the court could allow the preliminary objection- Supreme Court Rules, Rule 53

Supreme Court Rules

Rule 55 states;

55. These Rules and Practice Directions issued there under shall bind all parties in all proceedings before the Court provided that:

(a) where any provision in these Rules or any relevant practice direction is not complied with, the Court may give such directions as may be appropriate, having regard to the gravity of the non-compliance, and generally to the circumstances of the case.

(b) any direction given under this rule may include the dismissal of the petition, reference or application

Held,

1. The Court was yet to pronounce itself on what constitutes a matter   of general public importance under Article 163(4) (b) of the Constitution of Kenya.   The matter at hand was one where the Court had been called upon to determine if the questions raised were of general public importance. Allowing the preliminary objection would deny the Court an opportunity to determine the important question of law and examine the substantive issues raised by the appeal to enable it make a jurisprudential finding on whether issues of child custody were indeed matters of general public importance.

2. The Supreme Court under Rule 53 of the Supreme Court Rules had power to extend the time limited by the rules and the court could exercise the power and deem the Notice of Appeal and Record of Appeal to have been filed within time.

3. The Supreme Court under Rule 55 of the Supreme Court Rules had discretion to issue appropriate orders where the rules of procedure had not been followed.

4. No injustice would be occasioned to the applicant if the matter was allowed to proceed to its determination under Article 163 (4) (b) of the Constitution of Kenya, 2010.

5. Article 159 (2) (d) of the Constitution of Kenya, 2010 required the Court to administer justice without undue regard to procedural technicalities. The essence of that provision was that a Court of law should not allow the prescriptions of procedure and form to trump the primary object, of dispensing substantive justice to the parties. That principle of merit bears no meaning cast-in-stone and which suits all situations of dispute resolution. On the contrary, the Court as an agency of the processes of justice is called upon to appreciate all the relevant circumstances and the requirements of a particular case, and conscientiously determine the best course. Raila Odinga v IEBC and 4 others, Petition (No. 5 of 2013).

6. The case before the court was one where the Court could disregard procedural technicalities in favour of substantive justice having regard to all relevant circumstances obtaining in the case.

7. (Dicta) “In arriving at this decision, this Court is guided by rules and regulations and urges all parties to follow the same since they guide the court and the parties in obtaining justice”

Preliminary objection dismissed, matter to proceed to full hearing