The Supreme Court has no jurisdiction to entertain an application filed without the existence of a pending petition of appeal or reference before the court.

George Boniface Mbugua v Mohammed Jawayd Iqbal (Personal representative of the Estate of the late Ghulam Rasool Jammohamed) [2021] eKLR

Misc Application 7 (E011) of 2021

Supreme Court of Kenya

MK Koome, CJ & P, PM Mwilu, DCJ & VP, SC Wanjala, NS Ndungu & W Ouko, SCJJ

August 6, 2021

Reported by Beryl Ikamari

Civil Practice and Procedure - stay of execution - application for a stay of execution at the Supreme Court - principles governing the grant of a stay of execution - whether the Supreme Court would grant a stay of execution of a Court of Appeal judgment.

Jurisdiction - jurisdiction of the Supreme Court - jurisdiction to hear and determine an application - where the applicant had not filed a notice of motion and a pending petition of appeal was not in existence - whether the Supreme Court could exercise jurisdiction and entertain the application - Supreme Court Rules 2020, rule 31(2).

Brief facts

The dispute related to a parcel of land along Ngong Road, Nairobi. In 1985, the parties entered into an agreement wherein the applicant was to purchase the land from the respondent (deceased) for a consideration of Kshs. 2, 000, 000. After making partial payments, the applicant took possession of the land. The dispute was about whether the applicant paid the full purchase price. While the applicant claimed that he had paid the full price, the respondent claimed that there was a balance of Kshs. 500, 000 and that the failure by the applicant to complete the transaction amounted to a repudiation of the agreement.

The applicant filed a suit at the Environment and Land Court seeking orders for the transfer of the suit premises to him as the purchaser. The respondent counterclaimed Kshs. 25,020,000 being rent for the period 1986 to 2011 and Kshs. 200,000 per month untill judgment was entered. The Environment and Land Court dismissed the counterclaim and ordered for the specific performance of the sale agreement.

The Environment and Land Court decision was overturned in an appeal by the respondent at the Court of Appeal. The Court of Appeal declared that the applicant had breached the agreement by failing to pay the full purchase price. The Court of Appeal also made the finding that time was of the essence in the parties' agreement and that the applicant's failure to pay the full purchase price despite being granted many opportunities to do so, disentitled him from the benefit of an order of specific performance.

The applicant filed a notice of motion indicating an intention to challenge the entire Court of Appeal judgment but he withdrew it and filed a notice of motion at the Court of Appeal for a review of the judgment. The review application was dismissed. Before the Court of Appeal, the applicant sought certification that the appeal raised matters of general public importance but before that application could be determined, he filed an application for a stay of execution of the Court of Appeal judgment.

Issues

1. What were the principles governing the grant of a stay of execution at the Supreme Court?
2. Whether the Supreme Court had jurisdiction to hear and determine an application that was filed without the filing of a notice of appeal and the existence of a pending petition of appeal or reference before the Supreme Court.

Held

1. There were no specific provisions relating to an application for a stay of execution at the Supreme Court. The Supreme Court Rules generally provided that an interlocutory application could be brought by way of notice of motion and it had to be filed together with written submission.
2. The principles governing the grant of a stay of execution were that the applicant had to demonstrate that the appeal was arguable and not frivolous, that if the stay was not granted the appeal would be rendered nugatory and that it was in public interest to grant the order of stay.
3. In determining whether the appeal was arguable, the court would not interrogate the merits of the appeal or make definitive findings of fact or law. The appeal did not have to be one that had to succeed but it had to be one that could be argued fully.
4. The concern on whether the failure to grant a stay would render the appeal nugatory, was whether if what was sought to be stayed was to happen, it would be reversible and if it was not reversible, whether it could be compensated by an award of damages.
5. Under rule 36 of the Supreme Court Rules, the Supreme Court's jurisdiction was invoked by filing a notice of appeal within fourteen days from the date of judgment or ruling which was the subject of appeal. The notice of appeal that would have allowed the Supreme Court to exercise jurisdiction was withdrawn.
6. Once a notice of appeal had been filed, an appeal could then be instituted by lodging, among others, a petition of appeal. No interlocutory application could be brought before a petition was lodged. An interlocutory application had to be based on an existing petition or reference.
7. An averment by the respondent to the effect that Civil Application No. 14 of 2020 for the very same reliefs as those sought in the application was also pending before the Court of Appeal, had not been controverted.
8. The court lacked jurisdiction to hear and determine the application as there was no notice of appeal or pending petition of appeal, which would allow the application to be filed. In addition, there was a parallel application before the Court of Appeal which sought similar reliefs.

Application dismissed.

Nature of directions that the Supreme Court could issue about the consideration of an application for a stay of execution.

Director of Public Prosecutions v Chrysanthus Barnabus Okemo & 4 others [2021] eKLR

Misc. Application 22 of 2020

Supreme Court of Kenya

MK Koome, CJ & P, MK Ibrahim, SC Wanjala, NS Ndungu & W Ouko, SCJJ

August 6, 2021

Reported by Beryl Ikamari

Civil Practice and Procedure – directions – issuance of directions by the Supreme Court – directions about the consideration of an application for a stay of execution – nature of directions that the Supreme Court could issue.

Brief facts

The Court of Appeal declared that extradition proceedings instituted before the Magistrate's Court against the 1^st and 2^nd respondent by the applicant (the Director of Public Prosecutions) were without the Attorney General's authority and were therefore a nullity in law. The Court of Appeal held that it was the Attorney General that had power to commence and conduct such proceedings. The applicant filed a Petition of Appeal No 14 of 2020 with leave of court for purposes of challenging the Court of Appeal's decision. The applicant also filed a notice of motion application for a stay of execution of the Court of Appeal decision.

Issues

What directions could the Supreme Court give with respect to the consideration of an application for a stay of execution?

Held

1. The application was listed for consideration on the basis of written submissions under rule 31 of the Supreme Court Rules. Considering the nature of the dispute and the fact that the appeal had been listed for hearing on October 5, 2021 and in order to save judicial resources, the court directed that: -

1. The notice of motion dated August 12, 2020 was taken out of the hearing list.
2. The notice of motion be listed for further directions during the hearing of Petition No. 14 of 2020 on October 5, 2021.
3. There were no orders as to costs.

Guiding principles that a court could consider in exercising the discretion to extend time

George Kang’ethe Waruhiu v Esther Nyamweru Munene & another [2021] eKLR

Civil Application No.18 of 2020

Supreme Court of Kenya

M.K Koome, CJ & P; M.K Ibrahim, S.C. Wanjala, I. Lenaola, W. Ouko, SCJJ

August 6, 2021

Reported by Chelimo Eunice

Civil Practice & Procedure – appeals – appeals to the Supreme Court - timelines for filing appeals to the Supreme Court – what was the timeframe within which to file a notice of appeal at the Supreme Court – Supreme Court’s discretion to extend time within which to file appeals – what were the guiding principles that a court could consider when exercising the discretion to extend time - whether it was mandatory to obtain certification before filing notice of appeal when lodging an appeal on a matter of general public importance - Supreme Court Rules, 2020, rule 15(2).

Brief facts

The applicant sought for extension of time to file an appeal against a judgment of the Court of Appeal.  In the alternative, the applicant sought to have a notice of appeal filed in the Court of Appeal on October 14, 2019 to be deemed duly filed and properly on record. He submitted, among others, that the omission in filing the notice of appeal in the Court of Appeal was due to an inadvertent error on the part of his former advocates and that the consequences of that error ought not be visited upon him. The applicant also argued that he could not instruct his advocates on time as he had been critically unwell to attend to the matter and that the courts and his advocates’ offices were closed following the Covid-19 pandemic only to reopen in June 2020 and so, no filings could be undertaken during that period.

The respondents opposed the application arguing that there was undue and unexplained delay on the part of the applicant in filing the application and that the applicant had not demonstrated a reasonable cause for the delay in filing the application one year and four months after the Court of Appeal’s decision.

Issues

1. What was the timeline within which to lodge an appeal at the Supreme Court?
2. What were the guiding principles to be considered by courts when exercising their discretion to extend time?
3. Whether it was mandatory to obtain certification before filing notice of appeal when lodging an appeal on a matter of general public importance.

Held:

1. The Supreme Court’s jurisdiction to extend time was provided for by rule 15(2) of the Supreme Court Rules, 2020 (the Rules) which granted it the discretion to extend time.
2. According to rule 36(1) of the Rules, notice of appeal ought to be filed within fourteen days from the date of judgment or ruling which was the subject of appeal. Rule 36(4) of the Rules also provided that in lodging an appeal on a matter of general public importance, it was not mandatory to obtain certification before filing the notice of appeal.
3. The judgment of the Court of Appeal was delivered on March 8, 2019. The last day for filing a notice of appeal was therefore March 22, 2019. An application for extension of time before the Supreme Court was not filed until 495 days later.
4. The discretion to extend time was unfettered. It was incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there were any extenuating circumstances that could enable the court to exercise its discretion in favour of the applicant.
5. The following were the underlying principles that a court could consider in exercising the discretion:

1. extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party, at the discretion of the court;
2. a party who sought extension of time had the burden of laying a basis, to the satisfaction of the court;
3. whether the court could exercise the discretion to extend time, was a consideration to be made on a case- to-case basis;
4. where there was a reasonable cause for the delay, the same was to be expressed to the satisfaction of the court;
5. whether there would be any prejudice suffered by the respondents, if extension was granted;
6. whether the application had been brought without undue delay; and
7. whether in certain cases, like election petitions, public interest could be a consideration for extending time.

6. Further to the above, there was emphasis on the need for an applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the court.
7.  The applicant had submitted that failure to file the notice of appeal was caused by an error on the part of his then advocates and that error ought not be visited on him. However, there was nowhere in the application where the applicant had demonstrated any effort and/or due diligence on his part to ensure that the notice of appeal and or an application for extension of time was filed within time or soon after the period for filing had expired. His explanation was therefore not satisfactory.
8. The other explanation given by the applicant to justify the delay was that he was ill and unable to pursue the case. It was, however, noted that his last admission in hospital was between July 15 and 17, 2019. There was no explanation for the period between March 8, 2019 and July 14, 2019. Although the applicant contended that his advocates attempted to file the application before the court on the same day he instructed his advocates and were turned away at the registry, there was no evidence to sustain those allegations. The court, in any case could not understand why an advocate or a litigant could have been turned away from a public registry and no explanation given for that action. That explanation also failed.
9. The applicant’s final explanation was that the Covid-19 pandemic led to closure of courts and his advocates’ offices. Whereas in other circumstances that explanation would attract sympathy, the court took judicial notice of the fact that the Covid-19 pandemic did not at any time lead to absolute closure of courts including the Supreme Court. Although service delivery was scaled down, services were still offered, and urgent applications prioritized. Again, the court did not find that explanation sufficient to warrant extension of time and to justify the delay in filing the instant application.

 Application disallowed with costs to the respondents.