The Supreme Court deems as withdrawn a notice of appeal for default in filing an appeal within the prescribed timeline after filing the notice of appeal

Brief facts

The application sought for orders that the notice of appeal lodged by the 1^st, 2^nd and 3^rd respondents at the Court of Appeal regarding Court of Appeal at Nairobi Election Petition Appeals Nos E006, E005 and E009 of 2023 be deemed to have been withdrawn and that the 1^st, 2^nd and 3^rd respondents be ordered to pay the costs relating to the notice of appeal and the costs of the application. The applicant contended that; his election as the Member of the National Assembly Starehe Constituency was challenged by the 1^st, 2^nd and 3^rd respondents in the High Court and was dismissed thus leading to the 1^st, 2^nd and 3^rd respondents filing election petition appeals at the Court of Appeal. The Court of Appeal dismissed the appeal following which the 1^st, 2^nd and 3^rd respondents lodged a notice of appeal on August 8, 2023 but had not yet filed their petition and record of appeal before the instant court. 

The applicant submitted that the 1^st, 2^nd and 3^rd respondents had failed to comply with rule 38 of the Supreme Court Rules, 2020 by not instituting their appeal within 30 days of the date of filing the notice of appeal where the appeal was as of right, which lapsed on September 7, 2023. The applicant further submitted that he was unaware of any application filed by the 1^st, 2^nd and 3^rd respondents for certification of the intended appeal as a matter of general public importance and thus prayed that it would be in the interest of justice that the notice of appeal be formally deemed as withdrawn and he be awarded costs. 

Issues

1. What was the effect of default in filing an appeal to the Supreme Court within the prescribed timeline after filing a notice of appeal without justification? 

Held

1. Rule 38 of the Supreme Court Rules, 2020 stipulated that an appeal to the court shall be filed within 30 days of the date of filing the notice of appeal, where the appeal was as of right; or 30 days after the grant of certification, where such certification was required. Rule 36(4) of the Supreme Court Rules, 2020 made it optional to file a notice of appeal either before or after certification in a matter of general public importance.
2. The 1^st, 2^nd and 3^rd respondents indicated their intention to invoke the courts jurisdiction under article 163(4)(b) of the Constitution of Kenya, 2010 (the Constitution). That involved certifying their intended appeal as a matter of general public importance. Though they submitted that they filed their notice of appeal before obtaining certification rendering the application premature, the 1^st, 2^nd and 3^rd respondents had not provided any evidence to support their assertion considering that the assertion was vehemently opposed on grounds that the application for certification was non-existent.
3. The 1^st, 2^nd and 3^rd respondents had defaulted in filing their appeal within the prescribed timeline after filing their notice of appeal. The 1^st, 2^nd, and 3^rd respondents had also not provided any justification for the continued existence of the notice of appeal on the courts record beyond the period permitted by rules 36 and 38 of the Supreme Court Rules.At any rate, if the 1^st, 2^nd and 3^rd respondents pursued their application for certification before the Court of Appeal and succeeded, they had sufficient time to move the court under the relevant rule. 
4. Costs followed the event. Under rule 46(2) of the Supreme Court Rules, the party in default in instituting the appeal shall be liable to pay the costs arising. There was no reason to deny the respondents costs as prayed. 

Application challenging the Supreme Courts jurisdiction on its ruling

Brief facts

The 2^nd respondent filed an application contending that the appeal raised no issues of constitutional interpretation. The applicant sought for the application to be struck out and for the firms that filed the petition to be sanctioned for filing frivolous and vexatious petitions. 

Issues

Whether the Supreme Court could determine on an application contesting its jurisdiction where it had already ruled that it had jurisdiction in a previous ruling. 

Held

1. In a ruling dated October 28, 2022, the Supreme Court had previously ruled that it had the jurisdiction to entertain the instant matter. The issue of jurisdiction was conclusively determined in the ruling. All other issues raised by the applicant were misguided and did not require the Supreme Courts attention. The instant application was frivolous, vexatious, and an abuse of the process of court. 

Apprehension of a miscarriage of justice is not a basis for granting certification for an appeal to the Supreme Court

Brief facts

The originating motion sought among other orders: the review/ setting aside the ruling, orders and decision of the Court of Appeal in Civil Application No. E089 of 2021; the certification of the matter as fit for determination by the court against the decision and judgment of the Court of Appeal in C.A. No. 10 of 2019. The applicant contended that the Court of Appeals finding and judgment in Civil Appeal No. 10 of 2019 which was based on an additional principle/ingredient of defamation had no foundation in law; that was, the requirement for evidence by a third party to establish injury to a persons reputation. According to the applicant, the requirement, albeit erroneous, had often been applied by the courts below and therefore the intended appeal presented the Supreme Court with an opportunity to resolve the anomaly and error. 

The applicant further contended that the requirement for evidence by a third party violated and ousted the applicants inherent right to dignity. The applicant also found that despite appreciating that the 1^st respondent had admitted to the four known legal principles/ingredients of defamation, the Court of Appeal found the applicant had not established the erroneous additional principle; and the effect of such a finding was that it altered the entire body of law relating to admissions. The respondents contended that: the application had not met the test for certification as raising matters of general public importance. 

Issues

Whether a mere apprehension of a miscarriage of justice was a proper basis for granting certification for an appeal to the Supreme Court. 

Held

1. The applicant had not specified whether the application was made under article 163(4)(a) or (b) of the Constitution. However, the court took cognizance of the fact that the substance of the application and the orders sought related to article 163(4)(b) which granted the court jurisdiction to hear appeals from the Court of Appeal on matters of general public importance.
2. The questions set out by the applicant as matters of general public importance were whether third party evidence was a prerequisite in defamation, and whether there was a violation of the applicants rights under articles 25(c) and 28 of the Constitution, which were factual issues specific to the parties circumstances and did not transcend the parties dispute.
3. The applicant had not established any contradiction or uncertainty in law arising from the Court of Appeal judgment in respect to its decision on the ingredients of the tort of defamation, and the attendant law that required settlement by the court. On the alleged violation of articles 25(c), 28, 164 and 166 of the Constitution by the Court of Appeal, the same was not subject to the courts jurisdiction under article 163(4)(b) of the Constitution.
4. A mere apprehension of a miscarriage of justice, was a matter most apt for resolution in the superior courts below, and was not a proper basis for granting certification for an appeal to the Supreme Court.
5. From a perusal of the impugned Court of Appeal ruling, the Court of Appeal correctly interrogated the applicants proposed issues under the threshold set by the court in Hermanus Phillipus Steyn case.

Requirements applicable under rule 19 of the Supreme Court Rules for applications as an amicus curiae before the Supreme Court.

Brief facts

The appeal arose from issues revolve around the interpretation of whether the rate of interest applied by a financial institution and the variation/increase thereof was subject to the approval of the Cabinet Secretary in charge of finance or within the parties freedom to contract. The Court of Appeal certified the matter as one raising issues of general public importance and the matter found its way to the Supreme Court.

 In the instant application, the Attorney General sought leave to be joined as amicus curiae. The applicant also sought for the Cabinet Secretary for Finance and National Treasury to be joined as an amicus curiae. 

Issues

1. Whether an applicant that had not sought to review the decision by the Court of Appeal to certify an appeal to the Supreme Court as one raising issues of public importance could contest the certification during the hearing of the substantive appeal at the Supreme Court
2. Whether a delay in filing pleadings on grounds that an applicant was waiting for the court to determine the pending applications was unreasonable.
3. What factors guided the Supreme Court in deterring an application to be joined as amicus curiae?

Held

1. While the applicant sought the admission of the Cabinet Secretary for Finance and National Treasury, it probably meant the Cabinet Secretary, National Treasury and Economic Planning (the Cabinet Secretary). Throughout its application and supporting affidavit thereto, the applicant referred to the Cabinet Secretary and the Attorney General interchangeably.
2. The role of an amicus curiae in any proceedings was to aid the court to arrive at a determination based on the law. Rule 19 of the Supreme Court Rules was the operative provision that guided the court in considering the admission of an amicus curiae.
3. The respondent did not seek a review of the order of the Court of Appeal that certified that the appeal raised issues of general public importance. The respondent could not be heard to claim that the appeal did not raise any issue of general public importance.
4. Rule 19(1) of the Supreme Court Rules provided that any party can request the court to admit a person as amicus curiae. The Supreme Court could consider suggestions from parties to any proceedings, to have a particular person, State Organ or organization admitted in any proceedings as amicus curiae.
5. It was not clear who between the Cabinet Secretary and the Attorney General the applicant sought to be admitted as amicus curiae. They were referred to interchangeably. The applicant had not demonstrated that the intended amicus curiae would be addressing point(s) of law which had not been addressed by the parties to the suit. That he would introduce novel aspects of the legal issues in question that will aid in the development of the law.
6. Neither the Attorney General nor the Cabinet Secretary was keen in participating in the instant matter. The applicant deposed that it served the Attorney General with its appeal on March 6, 2023. Despite being served with the motion; the intended amicus curiae had not filed any response or brief setting out their position. No prejudice would be occasioned to the Cabinet Secretary or the Attorney General if they were not admitted as amicus curiae.
7. The explanation that the applicant could not file the motion because of another pending application for joinder of Kenya Bankers Association as an interested party, which was determined on June 16, 2023 held no weight. Nothing stopped the applicant from filing its motion as an application for joinder of an interested party had no bearing on admission of an amicus curiae. In many instances, the Supreme Court had determined such applications simultaneously. The instant motion was lodged after unreasonable delay. It did not meet the criteria set under rule 19 of the Supreme Court Rules and lacked merit.

Requirements to be met before the Supreme Court could grant an order for stay of execution

Brief facts

The application sought the stay of execution against the judgment and decree of the Court of Appeal delivered on the July 28, 2023 pending the final determination of the appeal and issuance of conservatory orders restraining the 1^st respondent from certifying the position of the Member of National Assembly for Magarini Constituency as vacant, pending the hearing and determination of the appeal. The applicant contended that the Court of Appeal in dismissing his appeal and the 2^nd and 3^rd respondents cross appeal misinterpreted the provisions of articles 81 and 86 of the Constitution of Kenya, 2010 (the Constitution) by imposing on the 2^nd respondent, the Independent Electoral and Boundaries Commission (IEBC) the burden of compliance which was not contemplated by articles 81 and 86.

The applicant further argued that the impugned decision was defective for affirming the nullification of the applicants victory despite finding that the irregularities were mostly minor and did not affect the outcome of the results. The applicant also urged that the judgment of the Court of Appeal created a vacancy, consequently the Speaker of the National Assembly was required to gazette the vacancy within 21 days of the decision to pave way for fresh elections, and in the event that fresh elections proceeded, there was a likelihood that the outcome of the appeal and the outcome of the fresh elections would be at variance, hence rendering the appeal an exercise in futility. The applicant further argued that should the court fail to grant stay and the IEBC proceed to trigger a by-election, the same would occasion the use of scarce public resources whose use would ultimately be in vain.

Issues

What were the requirements to be met before the Supreme Court could grant an order for stay of execution? 

Held

1. The court under section 23A of the Supreme Court Act had jurisdiction to issue an order for stay of execution, an injunction, a stay of further proceedings or any other conservatory or interim orders, on such terms as the court may deem fit. Before the court granted an order for stay of execution, the appellant, or intending appellant, must satisfy the court that;

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 to eventually succeed, would be rendered nugatory; and
3. that it was in the public interest that the order of stay be granted. 

2. The gist of the appeal involved a determination of the proper interpretation of the provisions of articles 81 and 86 of the Constitution and section 83 of the Elections Act on the two-prong test before nullification of elections to determine whether the election for the Member of National Assembly in Magarini Constituency was conducted in accordance with the principles and whether the irregularities by the 2^nd and 3^rd respondent were sufficient enough to nullify the elections. The applicants appeal also addressed the principles of the burden of proof to be applied in elections petitions. The appeal was arguable and not frivolous. 

3. The impending and imminent execution of the impugned decision of the Court of Appeal would constrain the applicant to seek re-election while at the same time pursuing his appeal with the possible consequence that the outcome of the appeal and the outcome of the fresh elections would be at variance, hence rendering the appeal an exercise in futility and a waste of judicial resources. 

4. The competing claims in the matter lay in favour of public interest and good governance both running in tandem with the need to consciously deploy limited public resources. Put another way, the rational sense of balance and proportion lay not in favour of fresh elections for Magarini Constituency while an appeal was pending, rather it lay in favour of an expedited hearing of the appeal.