The Supreme Court deems as withdrawn a notice of appeal for default in filing an appeal within the prescribed timeline after filing the notice of appeal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regarding Court of Appeal at Nairobi Election Petition Appeals Nos E006, E005 and E009 of 2023 be deemed to have been withdrawn and that the 1^st, 2^nd and 3^rd respondents be ordered to pay the costs relating to the notice of appeal and the costs of the application.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importance and thus prayed that it would be in the interest of justice that the notice of appeal be formally deemed as withdrawn and he be awarded costs.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.