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
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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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)
1. Mr Lubulellah for the 1st and 2nd respondents
2. Mr Nyakundi for the 3rd Respondent
3. Mr Gichuhi for the Petitioner