Factors to consider in awarding costs where a suit involved matters of public interest

Director of Public Prosecution v Michael Sistu Mwaura Kamau & 4 others [2020] eKLR

Petition of Appeal No. 18 of 2019

Supreme Court of Kenya

PM Mwilu DCJ & VP; MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

September 23, 2020

Reported by Kakai Toili

Civil Practice and Procedure – costs – awarding of costs – where parties had withdrawn a suit but failed to agree on costs – where the suit involved matters of public interest - what were the factors to consider in awarding costs.

Brief facts

In September 2019 the court recorded a consent order marking the instant petition as withdrawn. The parties were however unable to agree on costs and thus the court directed parties to file submissions limited to the question whether costs should be paid to the respondents consequent upon the withdrawal of the petition. The appellant, the Director of Public Prosecutions, argued that no order as regards costs should be made as the issue of costs was never raised at both the High Court and the Court of Appeal. The respondents, save the 3^rd, 4^th and 5^th respondents disagreed and submitted that costs had to follow the event even as it was a matter of discretion for the court.

Issue

What were the factors to consider in awarding costs where a suit involved matters of public interest?

Held

1. The award of costs would normally be guided by the principle that costs followed the event: the effect being that the party who called forth the event by instituting suit, would bear the costs if the suit failed; but if that party showed legitimate occasion, by successful suit, then the defendant or respondent would bear the costs. However, the vital factor in setting the preference was the judiciously-exercised discretion of the court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest would be a relevant factor, in the exercise of such discretion, as would also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation.
2. Although there was good sense in the basic rule of costs, that costs followed the event, it was not an invariable rule. The ultimate factor on award or non-award of costs was a judicial discretion. Therefore, costs did not, in law, constitute an unchanging consequence of legal proceedings.
3. The fact that the appellant was a public entity was not in itself a reason to deny an opposing but entitled party its costs in appropriate circumstance. Each case had to be looked at in its specific circumstances and costs awarded or denied at the complete discretion of the court.
4. Whereas the appellant had withdrawn the petition when it was ready for hearing and while the respondents had spent time and resources preparing for the hearing, the issues raised in the appeal were of great public interest, the extent of powers bestowed upon the Ethics and Anti-Corruption Commission and whether corruption related offences could be initiated when the Commission was not properly constituted and whether the President could direct the Commission or the Director of Public Prosecutions in the execution of their constitutional mandates. Those matters transcended the specific interests of the parties and had settled in the public sphere thus attracting the public interest. An order of costs against any party would in the circumstances not be fair.

Petition marked as withdrawn; each party to bear its costs of the appeal.

Failure to obtain judges’ notes timeously on account of the slow administrative processes was good reason to warrant leave to extend time to file an appeal before the Supreme Court.

GEO Chem Middle East v Kenya Bureau of Standards

Petition (Application) 47 of 2019

Supreme Court of Kenya

PM Mwilu, DCJ and VP; MK Ibrahim, SC Wanjala, NS Ndungu and I Lenaola, SCJJ

September 23, 2020

Reported by Ribia John

Civil Practice and Procedure – appeals – appeals to the Supreme Court - extension of time – extension of time to file an appeal to the Supreme Court – applicable principles - failure to obtain judges’ notes timeously on account of the slow administrative processes - whether failure to obtain judges’ notes timeously on account of the slow administrative processes was sufficient reason to warrant the Supreme Court to allow an application  that sought for leave to extend time to file an appeal - Supreme Court Rules, rule 15(b)

Brief Facts

The applicant filed an application for leave to extend time to file an appeal. The applicant contended that the delay was inadvertent the delay in filing the supplementary record of appeal was occasioned by inability to obtain the judges’ notes as they were not available at the time of filing the appeal and that three letters; from the respondent to the Commissioner General, Kenya Revenue Authority; another from the appellant’s lawyers, to the respondent and another from the respondent to the appellant’s lawyers were all inadvertently omitted from the record of appeal.

The respondent opposed the application on grounds that the application was incompetent as the documents sought to be admitted were not annexed and therefore their authenticity and relevance could not be authenticated. In addition, that the entire record of appeal was jumbled up and the letters in question were deliberately excluded to prejudice the respondent’s case and in any event, the Judges’ notes had not been served on the respondent and on the whole, allowing the application would greatly inconvenience the respondent.

Issue

Whether failure to obtain judges’ notes timeously on account of the slow administrative processes was sufficient reason to warrant the Supreme Court to allow an application that sought for leave to extend time to file an appeal.

Held

1. By rule 15(b) of the Supreme Court Rules, 2020, the court could, at its discretion extend time for any action under the rules. The principles for grant of an order of extension of time were that an applicant had to give sufficient reasons for any delay and that the period of delay was nonetheless an important consideration in the court’s exercise of discretion to grant or deny the extension.
2.  The explanation given by the applicant was reasonable and there was no prejudice to be caused to the respondent as the three letters sought to be admitted had certainly been in its custody in proceedings before the superior courts below and failure to obtain judges’ notes timeously could not be blamed on the applicant but on slow administrative Court processes.

Application allowed; the supplementary record of appeal was to be served within 3 days of the instant ruling; each party was to bear their own costs.

The delay in filing a supplementary record of appeal occasioned by inability to obtain the order and certified copies of typed court proceedings is a valid reason to allow extension of time

Ferdinand Ndungu Waititu Babayao v Republic

Petition Application 2 of 2020

Supreme Court of Kenya

DK Maraga, CJ & P; MK Ibrahim, SC Wanjala, I Lenaola & NS Ndungu, SCJJ

September 23, 2020

Reported by Sharon Sang & Kakai Toili

Civil Practice and Procedure – appeals – appeals to the Supreme Court – timelines for filing appeals – extension of time – extension of time to file a supplementary record of appeal – whether the delay in filing the supplementary record of appeal occasioned by inability to obtain the order and certified copies of typed court proceedings from the Court of Appeal was a valid reason to allow extension of time – Supreme Court Act, 2011, section 21(3); Supreme Court Rules, 2012, rule 53

Jurisdiction – jurisdiction of the Supreme Court – jurisdiction of the Supreme Court on application for extension of time – when could the Supreme Court allow an application for extension of time – whether the Supreme Court had the jurisdiction to determine and allow an application for leave to extend time – Supreme Court Rules, 2012, rule 53.

Brief facts

The application filed by the petitioner contended that the delay in filing the supplementary record of appeal dated July 30, 2020 and filed on August 5, 2020 was occasioned by the inability to obtain the order and certified copies of typed court proceedings from the Court of Appeal despite request made on December 30, 2019. The respondent did not file any response or submission with regard to the application despite directions issued by the deputy registrar that submissions ought to be filed by August 28, 2020.

Issues

1. Whether the Supreme Court had the jurisdiction to determine and allow an application for leave to extend time.
2. Whether the delay in filing the supplementary record of appeal occasioned by inability to obtain the order and certified copies of typed court proceedings from the Court of Appeal was a valid reason to allow extension of time.

Relevant provisions of law

Supreme Court Act, No 7 of 2011

Section 21 – General Powers

(3) The Supreme Court may make any order necessary for determining the real question in issue in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Supreme Court thinks fit to determine before final judgment in the appeal.

Supreme Court Rules, 2012

Rule 53

The Court may extend the time limited by these Rules, or by any decision of the Court.

Held

1. The Supreme Court had the jurisdiction to consider and determine an application for leave to extend time to do anything required by its rules in accordance with section 21(3) of the Supreme Court Act and rule 53 of the Supreme Court Rules, 2012. The application by the petitioner dated August 7, 2020 and filed on August 11, 2020 satisfied the principles set out by the Supreme Court on extension of time.
2. The petitioner had provided sufficient grounds and reasons for the delay in filing the supplementary record of appeal as the delay in obtaining the order and certified typed copies of proceedings from the Court of Appeal was an administrative issue that could not and should not be held against the petitioner.
3. The respondent had not opposed the application neither had he shown what prejudice would be occasioned upon him if the applicant’s application was allowed.

Application allowed: each party to bear its own costs.

Orders;

1. The supplementary record of appeal dated July 30, 2020 and filed on August 5, 2020 was deemed duly and properly filed.
2. Parties to appear before the deputy registrar for further directions.

Factors the Supreme Court considered in an application for leave to extend time to file an appeal.

John Mining Temoi & another v Governor, Bungoma County & 3 others

Civil Application 17 of 2020

Supreme Court of Kenya

DK Maraga, CJ and P; MK Ibrahim, SC Wanjala, SN Ndungu and I Lenaola, SCJJ

September 23, 2020

Reported by Ribia John

Civil Practice and Procedure – appeals – appeals to the Supreme Court -  extension of time – extension of time to file an appeal to the Supreme Court – applicable factors - what factors did the Supreme Court consider in determining an application for leave to extend time to file an appeal - Supreme Court Rules, rules 38(2)(a) and 39(2).

Brief Facts

The applicants filed an application for leave to extend time to file an appeal. The applicants contended that the delay was inadvertent and was posed by the adverse effects caused by the Covid 19 pandemic.

The 1^st respondent opposed the application on grounds that the application lacked merit, that the delay was inexcusably inordinate, and that the right of extension was not a right that the applicants deserved.

Issue

What factors did the Supreme Court consider in determining an application for leave to extend time to file an appeal?

Held

1. The Supreme Court had the jurisdiction to consider and allow an application for leave to extend time. An applicant that sought extension of time had to satisfy the principles set out in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral & Boundaries Commission & 7 others, SC (App) No. 16 of 2014, [2014] eKLR.
2. The applicants had no reasonable or cogent explanation and did not adduce sufficient reasons for the delay in filing the intended appeal as failure to obtain legal representation was not a sufficient ground for the Supreme Court to exercise its discretion in an application for leave to file an appeal out of time where no evidence was tendered in that regard. And whereas the Covid pandemic initially affected the ability of parties to access the Supreme Court, there was no evidence in the instant case that the applicants were unable to access the Supreme Court or the Court of Appeal in good time to file their appeal.
3. The applicants had not annexed to their application their intended petition of appeal or the grounds of appeal which they wished the court to consider in their intended petition of appeal and to allow the proceedings before the Supreme Court to commence in accordance with rules 38(2)(a) and 39(2) of the Supreme Court Rules, 2020. The applicants had also not explicitly stated what constitutional provisions they intended to rely upon in the intended appeal.

Application dismissed, each party was to bear their own costs.

Attributes that were imperative for an appeal to the Supreme Court under article 163(4)(a) of the Constitution

Paul Mungai Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney-General & 2 others [2020] eKLR

Petition No. 45 of 2018

Supreme Court of Kenya

P M Mwilu (DCJ & V-P), M K Ibrahim, S C Wanjala, N Njoki & I Lenaola, SCJJ

September 23, 2020

Reported by Chelimo Eunice

Jurisdiction – appellate jurisdiction – appellate jurisdiction of the Supreme Court – guiding principle when interpreting law touching on the appellate jurisdiction of the Supreme Court – which appeals lay from the Court of Appeal to the Supreme Court - appellate jurisdiction of the Supreme Court under article 163(4)(a) of the Constitution – where article 163(4)(a) of the Constitution provided that appeals lay from the Court of Appeal to the Supreme Court as of right in any case involving the interpretation or application of the Constitution – components of a matter that involved application and interpretation of the Constitution - Supreme Court’s discretion to determine what matter was appealable to it under article 163(4)(a) of the Constitution – what were the attributes that were imperative for an appeal to the Supreme Court under article 163(4)(a) of the Constitution – whether a decision that a claim was not ascertainable and could not be determined interpreted or applied the Constitution – Constitution of Kenya, 2010, article 163(4)(a).

Brief facts

The petitioners claimed to be poor landless people who had been relocated to Korogocho from various parts of Nairobi. They claimed ownership of the land in Korogocho contending that they were allocated the plots in the 1970s and 1990s and had put up various structures where they resided and had even developed the plots. It was alleged that in 1986, the then President visited the area and ordered roads to be constructed and electricity installed, which directive was implemented. The petitioners averred that they had severally petitioned the Government for titles and on November 22, 2000, in a public rally (baraza), the President directed the respondents together with the City Council of Nairobi to issue them with titles.

That notwithstanding the President’s directive, the Provincial Administration started interfering with the petitioners’ possession of the plots. On May 11, 2001 they were informed of Government plan to pull down their houses and come up with new permanent houses. They argued that because of the promises made to them, which they believed to be true, they were entitled to be issued with the title deeds for the plots. It was on that basis that they moved to the High Court seeking various orders, including, a declaration that they were entitled to be registered as proprietors/owners of the plots on which their semi-permanent houses stood (suit land).

The High Court dismissed the petition holding, inter alia, that it did not disclose any cause of action, hence there was nothing for it to consider in relation to whether the petitioners were to be issued with title deeds for the suit land. Aggrieved by that decision, the petitioners appealed to the Court of Appeal. The Court of Appeal held that their claim was not supported by evidence, was not ascertainable and therefore could not be determined. It dismissed the appeal. Aggrieved, the petitioners appealed to the Supreme Court arguing, among others, that they had an automatic right of appeal under article 163(4)(a) of the Constitution as the matters involved touched on constitutional interpretation.

Issues

1. Which appeals lay from the Court of Appeal to the Supreme Court?
2. What was the guiding principle when interpreting law touching on the appellate jurisdiction of the Supreme Court?
3. What were the attributes that were imperative for an appeal to the Supreme Court under article 163(4)(a) of the Constitution?
4. Whether a decision that a claim was not ascertainable and could not be determined interpreted or applied the Constitution.

Held

1. The Supreme Court in exercise of jurisdiction under article 163(4)(a) of the Constitution had to await and respect the superior courts’ exercise of their jurisdictions on the issue. The rationale being that the Supreme Court would only sit on appeal on matters which the other courts had already determined so that as an apex court, it benefitted from the reasoning of those other courts.
2. In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle was to be that the chain of courts in the constitutional set-up, running up to the Court of Appeal, had the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law and only cardinal issues of law or of jurisprudential moment, deserved the further input of the Supreme Court.
3. Article 163(4)(a) of the Constitution had to be seen to be laying down the principle that not all intended appeals lay from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution could be entertained by the Supreme Court.
4. The petitioners moved to the High Court under section 84 of the repealed Constitution seeking to enforce their rights under sections 71, 74, 75, 77, 81 and 82 of the repealed Constitution. At the core of the case was the question whether their right to life under section 71, and right to property under section 75 of the repealed Constitution had been infringed or threatened by the respondents. Consequently, a prima facie case touching on the interpretation and application of the Constitution was brought to the Supreme Court. Thus, the appeal had ably invoked the Supreme Court’s jurisdiction under article 163(4)(a) of the Constitution.
5. The invocation of the court’s jurisdiction was not however a panacea for a finding that a meritorious case had been made before the court. A finding that a court had jurisdiction to hear and determine a matter was a preliminary finding that the matter before the court was one for which the court was, by law permitted to determine.
6. For a successful and competent appeal to the Supreme Court under article 163(4)(a) of the Constitution, it was not enough for a litigant to allege that his/her case before the superior courts involved interpretation and application of the Constitution. The Supreme Court’s appellate jurisdiction under article 163(4)(a) was a qualified one. The Supreme Court was not just another tier of appeal for constitutional matters. A litigant had to categorically outline the various constitutional issues of interpretation and application which were in issue from the High Court and which the Court of Appeal subsequently considered, and erred in its interpretation and application to warrant appeal to the Supreme Court. While the Supreme Court would find that its jurisdiction had been invoked under article 163(4)(a) of the Constitution, it had the discretion on what issue(s) to determine or whether the alleged issues legitimately fell within that jurisdiction.
7. The Supreme Court retained the discretion to determine what matter was appealable to it under article 163(4)(a) of the Constitution. Such a matter had to be founded on cogent issues of constitutional controversy, which issues were to be so determined by the Supreme Court itself. So that, while a litigant would file his/her appeal, it was the Supreme Court which had the sole discretion of determining whether the issues brought before it raised cogent constitutional controversies to warrant its input.
8. The appellate jurisdiction of the Supreme Court under article 163(4)(a) of the Constitution was not just another level of appeal. Thus, even if the original suit in the High Court or lower court invoked specific constitutional provisions, that fact alone was not enough for one to invoke and sustain an appeal before the Supreme Court. A party had to steer his/her appeal in the direction of constitutional interpretation and application. A party needed to directly point to the specific instances where the Court of Appeal erred in its interpretation and application of the Constitution. It could be while a matter invoked specific constitutional provisions, those provisions were never part of the court(s)’determination and the matter turned on purely factual and or statutory issues.
9. The following attributes were imperative for an appeal to the Supreme Court under article 163(4)(a) of the Constitution:

1. The jurisdiction revered judicial hierarchy and the constitutional issues raised on appeal before the Supreme Court had to have been first raised and determined by the High Court (trial court) in the first instance with a further determination on the same issues on appeal at the Court of Appeal.
2. The jurisdiction was discretionary in nature at the instance of the Supreme Court. It did not guarantee a blanket route to appeal. A party had to categorically state to the satisfaction of the Supreme Court and with precision those aspects/issues of his matter, which in his opinion fell for determination on appeal in the Supreme Court as of right. It was not enough for one to generally plead that his case involved issues of Constitution interpretation and application.
3. A mere allegation(s) of constitutional violations or citation of constitutional provisions, or issues on appeal which involved little or nothing to do with the application or interpretation of the Constitution did not bring an appeal within the jurisdiction of the Supreme Court under article 163(4)(a) of the Constitution.
4. Only cardinal issues of constitutional law or of jurisprudential moment, and legal issues founded on cogent constitutional controversies deserved the further input of the Supreme Court under article 163(4)(a) of the Constitution.
5. Challenges of findings or conclusions on matters of fact by the trial Court of competent jurisdiction after receiving, testing and evaluation of evidence did not bring up an appeal within the ambit of article 163(4)(a) of the Constitution.

10. In dealing with an appeal, the Supreme Court’s first hurdle was the delimiting of issues that legitimately fell for its determination. That was important since it was an appellate court with a very qualified jurisdiction. Not every issue that was before the superior courts was open for its determination in exercise of its appellate jurisdiction under article 163(4)(a) of the Constitution. Matters of fact that touched on evidence without any constitutional underpinning were not open for the Supreme Court’s review on appeal. The same was also true of matters that purely dealt with interpretation and application of statutory provisions.
11. As regards the issues framed by the petitioners for determination, save for the Supreme Court’s jurisdictional issue, no other issue lay for determination by the Supreme Court in exercise of its appellate jurisdiction under article 163(4)(a) of the Constitution.
12. Both the Court of Appeal and the High Court agreed that there was no evidence upon which the petitioners had laid their claim to the suit land. That decision was majorly an evidentiary matter. The Court of Appeal had observed that the appeal raised constitutional issues of the right to housing and it was ready to make a determination on the issue. The only hurdle was that there was no evidence by the petitioners to back their claim. On that basis, the appellate court downed its tools and upheld the High Court decision.
13. The Court of Appeal in making the conclusion that the petitioners’ claim was not ascertainable and therefore could not be determined, neither interpreted nor applied the Constitution. In no way did the Court of Appeal’s conclusion of lack of evidence took any constitutional trajectory so as to warrant the Supreme Court’s intervention. Some of the issues framed for determination by the petitioners touched on matters of fact and statutes. Some issues were being raised before the Supreme Court for the first time. The petitioners were under a duty to frame the issues they considered were of a constitutional nature which the Court of Appeal erred in its interpretation or application but they failed in that duty. No cogent issue of constitutional controversy arose and/or was in issue at the Court of Appeal that warranted the Supreme Court’s further input.
14. At the time of filing the matter before the High Court, the petitioners were not facing any eviction threat or order. Before determining whether any of the orders they sought warranted being granted, the petitioners had to first prove their entitlement and right to the property. As the superior courts found, no evidence was tendered hence the case was not proved. Consequently, the Supreme Court found no basis upon which to delve into the interrogation of the matter whether reliefs such as structural interdicts were available.
15. The petitioners did not marshall a satisfactory case before the Supreme Court for it to exercise its jurisdiction under article 163(4)(a) of the Constitution. The petition lacked merit.

Petition dismissed with no orders as to costs.

The Supreme Court could not entertain appeals from cases that were determined and finalized by the Court of Appeal before the promulgation of the Constitution of Kenya, 2010

Wanyiri Kihoro v Attorney General [2020] eKLR

Application No. 6 of 2020

Supreme Court of Kenya

D K Maraga, (CJ & P), P M Mwilu (DCJ & V-P), S C Wanjala, N Njoki & I Lenaola, SCJJ

September 23, 2020

Reported by Chelimo Eunice

Jurisdiction – appellate jurisdiction of the Supreme Court – appeals from the Court of Appeal - whether the Supreme Court had jurisdiction to entertain appeals from cases that were determined and finalized by the Court of Appeal before the promulgation of the Constitution of Kenya 2010 – where the final judgment by the Court of Appeal was delivered on March 17, 1993 – whether the Supreme Court could entertain the appeal - Constitution of Kenya, 2010, article 163(4)(b).

Brief facts

The applicant sought to review the ruling of the Court of Appeal denying him certification to file an appeal to the Supreme Court. The intended appeal was against the judgment of the Court of Appeal in Civil Appeal No. 151 of 1988 delivered on March 17, 1993. The applicant argued that although Civil Appeal No. 151 of 1988 was heard and determined on March 17, 1993, the cause of action was not satisfied or finalized until November 2011, when the applicant’s application before the High Court seeking enforcement of the judgment in Civil Appeal No. 151 of 1988 was determined and the decretal amount recovered from the State; that there was continuity of the dispute between the parties up to November 2011, which was after the promulgation of the 2010 Constitution, hence the Supreme Court had jurisdiction to entertain the intended appeal.

Issue

Whether the Supreme Court had jurisdiction to entertain appeals from cases that were determined and finalized by the Court of Appeal before the promulgation of the Constitution of Kenya 2010.

Held

1. The Supreme Court had no jurisdiction to entertain appeals from final judgements of the Court of Appeal before the promulgation of the Constitution of Kenya 2010. Article 163(4)(b) of the Constitution was forward-looking, and did not confer appellate jurisdiction upon the Supreme Court to entertain matters that had been finalized by the Court of Appeal before the commencement of the Constitution.
2. The final judgment by the Court of Appeal was delivered on March 17, 1993, long before the promulgation of the Constitution. There could never have been any other appeal from that judgment due to the fact that the Court of Appeal was then, the highest court in the land. When the applicant moved to the High Court in Miscellaneous Application No.52 of 2009, he was simply but importantly seeking to enforce the final judgment and orders of the Court of Appeal. He was seeking to reap the fruits of that judgment. Such an application could not be said to have sustained the cause of action until November 2011, so as to confer jurisdiction on the Supreme Court. The applicant was not appealing anything from such an enforcement action that he commenced before the High Court. Even if such an appeal were possible, which it was not, the Supreme Court would not have appellate jurisdiction over a decision from the High Court.
3. Since the Supreme Court had no jurisdiction to entertain the application, it could not determine the other two issues raised.

Application dismissed with no orders as to costs.

Whether a notice of appeal and petition of appeal filed out of time and without the requisite leave could be sanctified by court

University of Eldoret & another v Hosea Sitienei & 3 others [2020] eKLR

Application No. 8 of 2020

Supreme Court of Kenya

D K Maraga (CJ & P), P M Mwilu (DCJ & VP), M K Ibrahim, S C Wanjala, Lenaola, SCJJ

September 4, 2020

Reported by Chelimo Eunice

Jurisdiction – jurisdiction of the Supreme Court – extension of time - jurisdiction of the Supreme Court to extend time within which to file an appeal – whether the Supreme Court could extend time within which to file an appeal – what were the grounds in which the Supreme Court could allow extension of time – claim that a delay of 560 days in filing an appeal was as a result of a litigant pursuing a review process before the Court of Appeal - whether the court could extend time within which to file an appeal in such a situation.

Civil Practice and Procedure – appeals – appeals to the Supreme Court – time within which to file appeals before the Supreme Court – importance of filing of a notice of appeal – whether a notice of appeal and petition of appeal filed out of time and without the requisite leave could be sanctified by the court -  Supreme Court Rules, 2020, rule 36.

Brief facts

The applicants sought to stay execution of decree and orders arising from the judgment of the Court of Appeal delivered on October 18, 2018 and for extension of time to file notice of appeal and petition of appeal in relation to the judgment. The applicants argued that if the stay orders were not granted, the 1^st applicant was going to suffer substantial losses because it would be required to expend public funds to satisfy the decretal sums amounting to Shs. 38,903,116.60 in favour of the 1^st and 2^nd respondents.

On the issue of leave to lodge the notice of appeal and appeal out of time, the applicants explained the delay by stating that after the delivery of the judgment by the Court of Appeal, they sought to review the same unsuccessfully as their application was dismissed. That a subsequent petition to the Supreme Court challenging the review ruling was also dismissed. They maintained that the steps they took revealed their concerted and diligent efforts made to access justice and that they were not indolent at any point.

The 1^st and 2^nd respondent opposed the application arguing that the Supreme Court had no jurisdiction to grant the prayers sought in the absence of a proper notice of appeal filed before it and that in any event, the application for stay was overtaken by events since the applicants’ account had already been garnished. They further stated that the application had been brought more than 560 days after the decision was delivered, making the application for stay a non-starter, impish and purely an abuse of the court process. They argued that ignorance of the law on the side of the applicants’ legal advisors could not find a ground for extension of time and the court could not deem as properly filed documents lodged in court after 560 days without authority as that would amount to countenancing egregious actions.

Issues

1. Whether the Supreme Court could extend time within which to file an appeal.
2. Whether the Supreme Court could allow extension of time in filing an appeal where the delay was as a result of a litigant pursuing a review process before the Court of Appeal.
3. Whether an aggrieved party could apply for review of the decision complained of and pursue an appeal against the same decision concurrently.
4. Whether a notice of appeal and petition of appeal filed out of time and without the requisite leave could not be sanctified by the court.

Held

1. The Supreme Court had jurisdiction to extend time and the exercise of that jurisdiction was an issue of its judicial discretion. A particular consideration being whether the applicants had a reasonable reason to explain their delay to the court’s satisfaction.
2. The main contention by the applicants was that they had sustained a diligent quest for justice only that they relied on their advocates’ honest belief and advice in pursuing a review of the Court of Appeal judgment and subsequent appeal before the Supreme Court. That course, unfortunately for them, did not yield their expected outcome, hence, the reason they were seeking another opportunity to go at it albeit by way of appeal on the substantive judgment of the Court of Appeal.
3. Following the decision of the Court of Appeal, the applicants were faced with two options, to either file for review of the decision to the same court or pursue an appeal before the Supreme Court within either of the applicable jurisdictional contours. The applicants, as advised by their advocates, chose the former. They could not concurrently pursue both options as that would be an outright abuse of judicial process. However, where a litigant had more than one option to pursue, he had to settle on one of them. The decision on which course to pursue was taken in advance and once it was taken, the other option was no longer available or placed in abeyance to be reverted to at a later stage in the event the initial option did not succeed. That meant that when choosing, the litigant was expected to choose the best available option since he could not have any further recourse.
4. When the applicants preferred to pursue a review of the decision, as they were entitled to, that was the best option in their assessment even if it turned out to be unsuccessful. Allowing them to take the second option at the instant stage, as if they never exercised the first option in the first place, would not only contribute to protracting litigation but also defeat the whole essence of finality of the litigation process. That would mean that precious judicial time and resources would have been unnecessarily expended in not settling the dispute but rather satisfying the litigants’ options to cherry pick and engage in trial and error at the altar of judicial process without the attendant consequences.
5. The delay which the applicants sought to be excused from was largely as a result of the applicants’ pursuit of the review process before the Court of Appeal and the resultant appeal before the Supreme Court. That delay was 560 days. Whereas the applicants would have diligently been pursuing their options whose success could have had an implication on the need for the instant proceedings, the court was not inclined to accept such explanation.
6. Rule 36 of the Supreme Court Rules provided for the filing of a notice of appeal within fourteen days of a decision of the Court of Appeal from which an intended appeal was founded. The filing of a notice of appeal was not premised on any occurrence or condition to be fulfilled by the appellant. It signified the intention to appeal. The applicants appreciated as much in filing their notice of appeal against the review decision of the Court of Appeal. The applicants could not, therefore, argue that they did not know the importance of that step. The applicants had not explained why they never attempted to comply with that important step at the time.
7. The prevailing circumstances did not enable the court to evaluate any satisfactory reasons that excused the applicants from the apparent non-compliance. The purported filing of a notice of appeal and petition of appeal without the requisite leave could not be sanctified by the court, notwithstanding that a case number was issued to the applicants. The alleged notice of appeal and petition of appeal, therefore, had to be struck out from the court record for having been filed without the court’s sanction and out of time. The notice of appeal not having been filed on time, the court could not resuscitate anything in the matter. The prayer for extension of time, thus, failed.
8. In the absence of a subsisting appeal, the prayers for stay in both applications were superfluous. The principle objective for grant of orders of stay was to preserve the subject matter of an appeal. The applicant had to satisfy the court that the intended appeal was arguable and not frivolous, and that unless the stay order sought was granted, the appeal or intended appeal would be rendered nugatory.
9. The applicants’ intended appeal would, but for the court’s finding, been arguable. The applicants sought to challenge the manner in which the Court of Appeal exercised its jurisdiction and how that related to articles 25 and 50 of the Constitution. The issues raised in the matter related to the court’s determination of the doctrine of res judicata a similar issue pending before the court.
10. As for the other consideration whether or not the intended appeal would be rendered nugatory, the applicants’ position was contradictory. The garnishee proceedings were as a result of lawful legal process arising from a decree issued by a competent court. That in itself could not justify grant of stay particularly in the wake of the status of the appeal. Accordingly, the court was not persuaded to grant stay orders under the circumstances, as it would have served no purpose.

Applications dated May 6, 2020 and May 22, 2020 dismissed, petition of appeal dated May 6, 2020 struck out, with each party bearing own costs.