Supreme Court did not have the jurisdiction to issue an order of stay for proceedings before the the Magistrates Court,

Brief facts

The applicant contended that he was aggrieved by the decision of the Court of Appeal which declined to grant stay of proceedings at the Magistrates Court (where the appellant was facing criminal charges); that his appeal pending before the Court of Appeal was arguable and raised triable issues involving a clear misapplication of the law.

The appellant sought an interim order staying all further proceedings in Kibera Criminal Case No. 743 of 2018 (Magistrates Court) pending the hearing and/or determination of the instant application; an order setting aside the ruling of the Court of Appeal; and an order staying all further proceedings in Kibera Criminal Case No. 743 of 2018 pending the hearing and final determination of the applicants pending appeal at the Court of Appeal.

Issues

1. What were the circumstances in which the Supreme Court acting as an appellate court could grant ancillary or interlocutory orders?
2. What were the circumstances in which an appellate court could grant an order for stay in criminal proceedings?
3. Whether the Supreme Court had the jurisdiction to issue an order of stay for proceedings before the the Magistrates Court.

Held

1. under section 21(2) of the Supreme Court Act,  and rule 3(5) of the Supreme Court Rules 2020, the Supreme Court had inherent power to grant any ancillary or interlocutory orders as could be necessary for the ends of justice or to prevent abuse of the process of the court. The criteria for grant of interlocutory relief to wit that the appeal had to be arguable and not frivolous; that if stay was not granted the appeal would be rendered nugatory; and if it was in the public interest that the order of stay was granted.
2. An order for stay of criminal proceedings was not granted as a matter of course but upon the sparing exercise of judicial discretion and only in exceptional circumstances.
3. The notice of motion lacked merit as it not only sought to set aside a ruling of the Court of Appeal at the interlocutory stage but also sought to stay proceedings before the Magistrates Court contrary to the limited jurisdiction granted to the Supreme Court under article 163(3)(b) and (4) of the Constitution.

Refusal to register an organization of persons within the LGBTQI community amounts to violation of the freedom of association and freedom from discrimination

Brief facts

In April 2012, the 1^st respondent applied on three separate occasions to the Non-Governmental Organizations Co-ordination Board (the appellant) for the reservation of one of the six different variations of names submitted for a proposed non-governmental organization (NGO) to address the violence and human rights abuses suffered by the lesbian, gay, bisexual, transgender, queer or questioning (LGBTQI) community in Kenya. The proposed names were, National Gay and Lesbian Human Rights Commission, National Coalition of Gays and Lesbians in Kenya, National Gay and Lesbian Human Rights Association, Gay and Lesbian Human Rights Council, Gay and Lesbian Human Rights Observancy and Gay and Lesbian Human Rights Organization.

The appellant rejected the 1^st respondents application and informed him that the proposed names and the objects of the proposed NGO were offensive to public policy and stood in conflict with sections 162, 163 and 165 of the Penal Code, which outlawed homosexual liaisons. Aggrieved, the 1^st respondent challenged the appellants decision of rejecting his application at the High Court. The High Court in determining the substantive question of violations of the respondents constitutional rights found that the respondents right of association guaranteed by article 36 of the Constitution of Kenya, 2010 (Constitution) was violated by the failure of the appellant to accord just and fair treatment of gay and lesbian persons living in Kenya seeking registration of an association of their choice.

Aggrieved, the appellant filed an appeal at the Court of Appeal. The Court of Appeal held that the appeal before it raised only two questions: whether the petition filed before the High Court was competent on account of jurisdiction based on the doctrine of exhaustion of remedies and whether, in rejecting the application for reservation of a name, the appellant breached article 36 of the Constitution. The Court of Appeal held that section 19 of the Non-Governmental Organizations Co-ordination Act (NGO Co-ordination Act) on appeals did not apply to the circumstances of the case and consequently, the High Court had the requisite jurisdiction to entertain the petition.

The majority of the Court of Appeal upheld the High Courts decision, and found, on the second question that the 1^st respondents rights were violated by the appellants failure to register the proposed organization. Further aggrieved, the appellant filed the instant appeal.

Issues

1. Whether the refusal to register an organization of persons who fell within the lesbian, gay, bisexual, transgender, queer or questioning community violated their freedom of association.
2. Whether it was unconstitutional to limit the right to associate through denial of registration of an association on the basis of sexual orientation? 
3. Whether refusal to reserve a name of an intended non-governmental organization on the ground that the Penal Code criminalized gay and lesbian liaisons amounted to discrimination. 
4. Whether the refusal to allow the reservations of names which included the terms gays and lesbians was unreasonable, irrational or illegitimate? 
5. Whether the right to form, join or participate in the activities of an association of any kind in article 36 of the Constitution included associations whose activities were contrary to the law. 
6. Whether the use of the words any person who has carnal knowledge of any person against the order of nature in section 162 of the Penal Code included female same-sex relationships as unnatural. 
7. Whether the refusal to approve the reservation of names of a proposed non-governmental organization was subject to the dispute resolution mechanism under section 19 of the Non-Governmental Organizations Coordination Act on appeals. 
8. What were the grounds in which an administrative decision could be challenged and struck down by courts. 

Relevant provisions of the law

Constitution of Kenya, 2010

Article 27 -Equality and freedom from discrimination

(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

Article 36 - Freedom of association

(1) Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.

(2) A person shall not be compelled to join an association of any kind.

(3) Any legislation that requires registration of an association of any kind shall provide that

(a) registration may not be withheld or withdrawn unreasonably; and

(b) there shall be a right to have a fair hearing before a registration is cancelled.

Non-Governmental Organizations Co-ordination Act, 1990

Section 19 - Appeals

(1) Any organization which is aggrieved by decision of the Board made under this Part may, within sixty days from the date of the decision, appeal to the Minister.

(2) On request from the Minister, the Council shall provide written comments on any matter over which an appeal has been submitted to the Minister under this section.

(3) The Minister shall issue a decision on the appeal within thirty days from the date of such an appeal.

(3A) Any organization aggrieved by the decision of the Minister may, within, twenty-eight days of receiving the written decision of the Minister, appeal to the High Court against that decision and in the case of such appeal

(a) the High Court may give such direction and orders as it deems fit; and

(b) the decision of the High Court shall be final.

(4) If the Council is satisfied that the organization has ceased to exist, its recommendation to the Board shall include suggestions of how the assets and liabilities of the organization should be distributed and the reasons thereon.

Penal Code, Cap 63

Sections 162 - Unnatural offences

Any person who

(a) has carnal knowledge of any person against the order of nature; or

(b) has carnal knowledge of an animal; or

(c) permits a male person to have carnal knowledge of him or her against the order of nature,

is guilty of a felony and is liable to imprisonment for fourteen years:

Provided that, in the case of an offence under paragraph (a), the offender shall be liable to imprisonment for twenty-one years if

(i)         the offence was committed without the consent of the person who was carnally known; or

(ii)        the offence was committed with that persons consent but the consent was obtained by force or by means of threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature of the act. [Act No. 5 of 2003, s. 32.]

Section 163 - Attempt to commit unnatural offences

Any person who attempts to commit any of the offences specified in section 162 is guilty of a felony and is liable to imprisonment for seven years.

Section 165 - Indecent practices between males

Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.

Non-Governmental Organizations Coordination Regulations, 1992

Regulation 8 - Approval of names

(1) An applicant for the registration of any proposed organization shall prior to such application seek from the Director approval of the name in which the organization is to be registered.

(2) The application for approval under Paragraph (1) shall be in Form 2 set out in the Schedule and accompanied by the fee specified in regulation 33.

(3) The Director shall, on receipt of an application and payment of the fee specified in regulation 33, cause a search to be made in the index of the registered Organizations kept at the documentation centre and shall notify the applicant either that

(a) such name is approved as desirable; or

(b) such name is not approved on the grounds that

(i) it is identical to or substantially similar to or is so formulated as to bring confusion with the name of a registered body or Organization existing under any law; or

(ii) such name is in the opinion of the Director repugnant to or inconsistent with any law or is otherwise undesirable.

(4) A name which has been approved under paragraph (3)(a) shall be entered in the register of reserved names on behalf of the applicant for a period of thirty days or such longer period, not exceeding sixty days, as the Director may allow and such period shall commence from the date of notification of such approval to the applicant.

Held

1. The appeal was filed as of right pursuant to article 163(4)(a) of the Constitution. From a perusal of the judgments of the superior courts, both courts interrogated the decisions of the Executive Director of the appellant (the Director) in view of article 36 and 27 of the Constitution. The instant matter was properly before the court.
2. The instant matter was not about the legalization or decriminalization of LBGTQI or the morality of same-sex marriage but revolved around the question of whether refusal to register an organization of persons who fell within the LGBTQI contravened the fundamental rights and freedoms of association guaranteed in the Constitution and whether the rights to freedom of association and freedom from discrimination of those persons seeking to be registered were infringed upon.
3. According to article 159(1) of the Constitution, judicial authority was derived from the people and vested in, and should be exercised by, the courts and tribunals established by or under the Constitution. In that regard, the Constitution encouraged use of alternative means of dispute resolution mechanism.
4. Where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it was only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it.
5. The administrative action concerned was the refusal to approve the 1^st respondents name. The relevant statute, the NGO Coordination Act, did not provide for a dispute resolution mechanism for the administrative action concerned. Unlike the Companies Act, the NGO Coordination Act did not anticipate that the reservation of names was an administrative action which would attract the dispute resolution mechanism provided for under section 19 of the NGO Coordination Act. In other words, there were no substantive provisions on approval of names under the NGO Coordination Act. In addition, from the provisions of Regulation 8 of the NGO Regulations, there were no administrative mechanisms to which the 1^st respondent ought to have exhausted, following the directors decision under that regulation.
6. Neither the NGO Coordination Act nor the NGO Coordination Regulations provided for any internal dispute resolution mechanism for a party aggrieved by the decision made by the director when exercising its mandate under Regulation 8 of the NGO Regulations. An Act of Parliament had to clearly provide for an internal dispute resolution mechanism before an aggrieved party could be bound by such a mechanism.
7. The petition before the High Court concerned interpretation and application of the Constitution, a jurisdiction bestowed upon that court. The minister, therefore, did not have the jurisdiction to entertain issues such as the constitutionality of the decision taken by the Director and the appellant. Therefore, the suit before the High Court was proper. There was no internal dispute resolution mechanism under NGO Coordination Act and the NGO Coordination Regulations, 1992 to challenge the impugned decision.
8. The right to freedom of association was recognized in international and regional human rights instruments which Kenya had ratified. Article 260 of the Constitution defined a person to include a company, association, or other body of persons whether incorporated or unincorporated. A literal reading of article 36 of the Constitution was that the LGBTQI group was not excluded from the definition under article 36. Article 36(3) required that any legislation that required registration of an association of any kind should provide that registration would not be withheld or withdrawn unreasonably. The right to form an association was an inherent part of the right to freedom of association guaranteed to every person regardless of race, sex, nationality, ethnicity, language, religion, or any other status.
9. The right to freedom of association could not be limited unless as provided for under the Constitution. There was no evidence placed before the 1^st appellant to demonstrate that persons who professed to be LGBTQI were criminals or that it was only them who were capable of committing the offence of unnatural acts. That was a mere assumption which was not born out of evidence when indeed it was confirmed by empirical data that even heterosexuals commit such offences more often than not most callously.
10. Not all rights were absolute, some rights were subject to limitation. In that context, article 36(3) of the Constitution contemplated that the right to freedom of association was subject to limitation. However, any limitation on any fundamental rights and freedom was subject to article 24 of the Constitution.
11. Although sections 162, 163, and 165 of the Penal Code prohibited any person from committing acts that went against the order of nature, those sections did not distinguish between heterosexual or homosexual offenders. The sections did not limit the perpetrators of such acts to persons who were LGBTQI; indeed, the words, any person, connoted a potential offender under those sections who could very well be heterosexual, homosexual, intersex or otherwise.
12. Sections 162, 163, and 165 of the Penal Code did not, pursuant to the provisions of article 24 of the Constitution, express the intention to limit LGBTQIs right to freedom of association. Likewise, the sections did not specify the nature and extent of the limitation of the freedom of association, if any. The 1^st respondents intention was to register an organization to champion for the rights of LGBTIQI, and that had no correlation whatsoever with the offences articulated under sections 162, 163 and 165.
13. The appellants interference to the 1^st respondents right to freedom of association did not pursue any legitimate aim such as national security or public safety, the prevention of disorder or crime, the protection of health and morals and the protection of the rights and freedom of others. Therefore, the appellants limitation of the right to freedom of association was not proportionate to the aim sought.
14. The Constitution required State organs, State officers and public officers to uphold national values and principles of governance such as human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, and protection of the marginalized. In addition, the Constitution, in article 21(1) provided that it was a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the bill of rights.
15. Article 21(3) of the Constitution imposed an obligation on all State organs and all public officers to address the needs of vulnerable groups within society including members of minorities and marginalised communities. Given that the right to freedom of association was a human right, vital to the functioning of any democratic society as well as an essential prerequisite enjoyment of other fundamental rights and freedoms, that right was inherent in everyone irrespective of whether the views they were seeking to promote were popular or not.
16. It would be unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of the sexual orientation of the applicants. Therefore, the appellants decision was unreasonable and unjustified. LGBTQI had a right to freedom of association which included the right to form an association of any kind. All persons, whether heterosexual, lesbian, gay, intersex or otherwise, would be subject to sanctions if they contravened existing laws, including sections 162, 163 and 165 of the Penal Code. By refusing to register the proposed NGO, the persons were convicted before they contravened the law. Such action was retrogressive. The appellant violated the 1^st respondents right to freedom of association under article 36 of the Constitution.
17. The use of the word sex under article 27(4) of the Constitution did not connote the act of sex per se but referred to the sexual orientation of any gender, whether heterosexual, lesbian, gay, intersex or otherwise. Further, the word including under the same article was not exhaustive, but only illustrative and would also comprise freedom from discrimination based on a persons sexual orientation. Therefore, an interpretation of non-discrimination which excluded people based on their sexual orientation would conflict with the principles of human dignity, inclusiveness, equality, human rights and non-discrimination.
18. To allow discrimination based on sexual orientation would be counter to the constitutional principles. Therefore, the appellants action of refusing to reserve the name of the 1^st respondents intended NGO on the ground that sections 162, 163 and 165 of the Penal Code criminalized gay and lesbian liaisons was discriminatory in view of section 27(4) of the Constitution. The 1^st respondents right not to be discriminated directly or indirectly based on their sexual orientation was violated by the appellant.

Principles to be complied with when appealing to the Supreme Court in a matter which had originated in the High Court by way of judicial review

Brief facts

The appellant was the nominated Safina political party presidential candidate for the August 9, 2022 general elections. On June 6, 2022 he presented his nomination papers before the 1^st respondent, the duly gazetted returning officer for the presidential election, for registration as candidate. Upon examining the documents, the 1^st respondent ruled that the appellant was unqualified to be nominated to contest in the presidential election and rejected his candidature based on the following reasons: lack of a university degree; lack of nomination by at least 2,000 voters each from at least 24 counties; and lack of a nomination certificate by Safina Political Party for the appellants running mate.

Aggrieved, the appellant lodged a complaint with the 3^rd respondent, the Independent Electoral and Boundaries Commission Disputes Committee (the Committee) challenging the validity of the grounds upon which the 1^st respondent refused to register him. The Committee dismissed the complaint and upheld the 1^st respondents decision. Aggrieved by the Committees decision, the appellant commenced judicial review proceedings at the High Court. The High Court dismissed the application with costs for lacking merit. The court held that based on the traditional limits of judicial review, a judicial review court did not assume appellate jurisdiction or a merit review or interrogation of facts upon which an impugned decision was made, but only the decision-making process.

Further dissatisfied, the appellant lodged an appeal to the Court of Appeal which dismissed the appeal with costs to the respondents.  Aggrieved by the Court of Appeals decision, the appellant filed the instant appeal at the Supreme Court. In opposing the appeal, the 1^st and 2^nd respondents filed a preliminary objection challenging the courts jurisdiction. It was the 1^st and 2^nd respondents argument that the appeal did not raise any matter involving the interpretation or application of the Constitution of Kenya, 2010 (Constitution) as contemplated under article 163(4)(a) of the Constitution.

Issues

1. What were the requirements for one to appeal to the Supreme Court as of right in any case involving the interpretation or application of the Constitution?
2. What were the principles to be complied with when appealing to the Supreme Court in a matter which had originated in the High Court by way of judicial review? 

Relevant provisions of the law

Constitution of Kenya, 2010

Article 163 - Supreme Court

(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 (5).

(5) A certification by the Court of Appeal under clause (4)(b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.

Held

1. Jurisdiction was a preliminary issue that ought to be dealt with at the onset given that, without jurisdiction a court was obligated to down its tools as it did not have the power to adjudicate upon the proceedings before it. A courts jurisdiction normally emanated from either the Constitution or legislation or both. 

2. The Supreme Courts appellate jurisdiction was set out in article 163(4) of the Constitution. The issues that the court would exercise its jurisdiction over pursuant to article 163(4)(a) were only issues involving the interpretation or application of the Constitution, which constitutional issues had been considered and determined by the superior courts. A question identified as involving interpretation or application of the Constitution thus had to be one that was argued in the court of first instance and canvassed through the hierarchy of courts, at the Court of Appeal and finally in the instant court. 

3. Mere allegation by a party that a question of constitutional interpretation or application was involved did not automatically bring the appeal within the ambit of article 163(4)(a) of the Constitution, unless the party could show that the matter by virtue of the courts determination took a constitutional trajectory of interpretation and application. 

4. By no means was the court an open forum for all cases from the appellate court on judicial review matters. Each appeal was to be considered on its merits on a case-to-case basis. Only causes bearing a real constitutional issue could be heard by the court and a plain claim that a matter raised issues of interpretation or application of the Constitution did not suffice. The principles a party should comply with when appealing to the Supreme Court in a matter which had originated in the High Court by way of judicial review were as follows; 

1. not all judicial review matters were appealable to the Supreme Court, as of right;
2. it was open to the party concerned to move the court on appeal under article 163(4)(b) of the Constitution, in which, the normal certification process applied;
3. where such an appeal came under article 163(4)(a) the Constitution, the petitioner was to identify the particular(s) of constitutional character that was canvassed at both the High Court and the Court of Appeal;
4. the party concerned should demonstrate that the superior courts had misdirected themselves in relation to prescribed constitutional principles, and either granted, or failed to grant judicial review remedies, the resulting decisions standing out as illegal, irrational, and/or unprocedural, hence unconstitutional. 

5. A question regarding the interpretation or application of the Constitution could arise from a multiplicity of factors and interrelationships in the various facets of the law, and the Constitution should be interpreted broadly and liberally so as to capture the principles and values embodied in it. 

6. The Court of Appeal addressed each of the appellants grievances. The main grievance was the qualification of the appellant based on section 22(2) of the Elections Act and as read with regulation 47(1) of the Elections (General) Regulations. The court also made reference to article 137(1) of the Constitution, section 23 of the Elections Act and regulations 23 and 18 of the Elections (General) Regulations and article 148 of the Constitution. While the provisions and grievances by the appellant were underpinned on article 38 and 83(3) of the Constitution, the gravamen of the dispute had nothing to do with the interpretation or application of the Constitution but rather a factual exercise by the superior courts below to evaluate the appellants compliance. None of the provisions of statute were by themselves under challenge. 

7. Although the appellant cited several provisions of the  Constitution, he had not set out, to any extent and to the courts satisfaction, the manner in which the superior courts interpreted and applied the  Constitution one way or the other. It could not thus be said that the issues were determined in consideration and pursuant to the interpretation or application of the Constitution to therefore warrant an appeal to the instant court under article 163(4)(a) of the  Constitution. The appellant seemed to be inviting the court to reprise the evidence and be persuaded as to make a conclusion that resonated with his. That was an invitation that the court had to decline. 

8. Despite asking the court to determine the matter for the sake of posterity, the appellant had not shown of the existence of any constitutional moment to be seized and the extent of such moment. The provisions of the Constitution not being in contention, qualifications and nomination of candidates would continue to be addressed as and when they arose based on peculiar circumstances obtaining. 

Improper and judicious exercise of discretion by the Deputy Registrar of the Supreme Court to decline the lodging of pleadings not framed in compliance with the law

Brief facts

The instant application was brought erroneously pursuant to the provisions of rule 4A(2), 31(2) and 38(4) of the Supreme Court Act, 2011 instead of section 11(1) of the Supreme Court Act and rules 6(2) of the Supreme Court Rules, 2020 in which the applicant, who was unrepresented by counsel sought, among other reliefs, an order of review and setting aside of the decision of the Deputy Registrar declining to lodge his pleadings. The applicant submitted that the Deputy Registrar denied him his right of appeal guaranteed by the Constitution of Kenya, 2010. The court further submitted that he had challenged the decision of the Court of Appeal to take out of the hearing list of February 1, 2022 Criminal Application No. E018 of 2021 and that that action was actuated by corruption within the Judiciary. 

Issues

1. Whether the Deputy Registrar of the Supreme Court had the power to decline the lodging of pleadings that were not framed in compliance with the Supreme Court Rules, 2020.
2. Whether it was a proper and judicious exercise of discretion by the Deputy Registrar of the Supreme Court to decline the lodging of pleadings not framed in compliance with the law. 

Held

1. The application though brought under the wrong provisions of the law and rules, sought reliefs under section 11(1) of the Supreme Court Act and rule 6(2) of the Supreme Court Rules, 2020 under which the court had jurisdiction to review the decision of the Deputy Registrar. Under rule 6, one of the roles of the Registrar was to decline pleadings that were not in accordance with the Constitution, the  Act, the Rules, or the court's practice directions for filings. A party aggrieved by a decision of the Registrar could apply for a review to a single judge whose determination of the question was final. 
2. Having read the impugned ruling of the Deputy Registrar, to the effect that the petition had not been framed in the manner prescribed by the Supreme Court Rules and further that the decision of the Court of Appeal to take out the applicants appeal from the hearing list did not constitute a determination to warrant invocation of the courts jurisdiction under article 163(4)(b) of the Constitution, the Deputy Registrar properly and judiciously exercised his discretion in declining to lodge the applicants petition. The petition of appeal was not framed in compliance with the Supreme Court Rules, 2020 and the Court of Appeal had not made any determination to require the intervention by the court. 

Appellate documents filed out of time and without leave at the Supreme Court were a nullity and of no legal consequence.

Brief facts

The 1^st, 2^nd and 4^th respondents sought leave of the court to enlarge time for filing of a notice of cross-appeal; they also sought prayers that their notice of cross-appeal annexed to the application be deemed as duly filed, served and properly on record; and that upon grant of the foregoing prayers, the 1^st and 2^nd respondents be permitted to rely in support of their cross-appeal, on the record of appeal lodged by the appellants. 

The appellants and the 3^rd respondent were opposed to the application on the grounds that the right to appeal was not absolute; that under the Supreme Court Rules, 2020 a party was permitted to file a cross appeal either 30 days after the main appeal has been served on that party or 30 days before the hearing of the appeal. 

Issues

Whether the public interest nature of a dispute could warrant the Supreme Court to exercise its inherent jurisdiction to allow a party who filed documents out of time and without leave and to seek the courts stamp of approval to deem the documents to be regularly on record.

Held

1.  Time was extended at the unfettered discretion of the court based on the unique circumstances of each case. The burden was upon the applicant to explain to the satisfaction of the court the reasons for delay; and whether there would be any prejudice suffered by the opposing parties if the extension was granted, among other considerations. 
2. The delay involved did not qualify to be described as inordinate. The reasons given were plausible. The public interest nature of the instant dispute militated against shutting out or throwing out of the seat of justice any party in the resolution of the instant dispute, and being satisfied that no party would be prejudiced if the time was extended. 
3. Rule 47(2)(b)  of the Supreme Court Rules, 2020 required the 1^st and 2^nd respondents to lodge eight copies of the memorandum of appeal and record of appeal and not to rely on other parties pleadings. It was highly irregular and presumptive in the Supreme Court to file documents out of time without leave and thereafter to seek the courts stamp of approval to deem them to be regularly on record.
4. The submissions filed out of time without prior leave by 1^st and 2^nd respondent, as well as those of the 4^th respondent were rejected. They were a nullity and of no legal consequence. The public interest nature of the instant dispute warranted the exercise of the inherent powers of the Supreme Court under section 3A of the Supreme Court Act and rule 3(5) of the Supreme Court Rules to excuse the infractions by the 1^st 2^nd and 4^th respondents. They were instead granted leave to exchange and file afresh their written submissions.

Supreme Court lacks the jurisdiction to determine an application for enlargement of time to comply with the directions in a matter it had already determined.

Brief facts

The applicant sought for the Supreme Court to enlarge time for compliance with Supreme Court orders which the court had issued after having conclusively determined the instant matter. 

Issues

Whether the Supreme Court having made a determination on issues before it, had the jurisdiction re-open deliberations on its directions.

Held

1. The Supreme Court was functus officio having rendered its judgment on February 17, 2022 which inter alia, directed the 1^st respondent/applicant to publish and publicize procedures for all its disciplinary and investigative processes, and that such publication be undertaken and effected through the Kenya Gazette, within 90 days from the date of the Judgment. The Supreme Court having made a determination on the issues before it could not re-open deliberation on its directions.
2. A court was functus when it had performed all its duties in a particular case. The purpose of the doctrine was to provide finality. Once proceedings were finally concluded, the court could not review or alter its decision; any challenge to its ruling on adjudication had to be taken to a higher court if that right was available.
3. The court had finalised the proceedings in the instant matter and did not have jurisdiction to further determine issues raised by the parties. The scope of the directions given by the court was specific to a period of ninety days. Further, the directions did not require the parties to return to update the Supreme Court on whether there was any progress as regards compliance. The determination by the court on the instant matter brought the whole matter to a final close. The parties were bound by court orders which required strict compliance.
4. The draft manual attached to the 1^st respondent/applicants notice of motion application is the requisite legal instrument anticipated under section 47 of the Judicial Service Act which empowered the 1^st respondent to make regulations for the better carrying out of its purpose. The 1^st respondent would be well advised to stand guided by the structure and format of the already published regulations provided for and gazetted in the third schedule of the Judicial Service Act and comply accordingly in form and content.

Whether the Deputy Registrar of the Supreme Court had the jurisdiction to decline to admit a partys record of appeal

Brief facts

The applicant filed the instant application seeking review of the decision of the Deputy Registrar delivered on September 7, 2016 declining to admit the applicants record of appeal and that should such review be granted, the court should permit the applicant to file its record of appeal within a specified time. The applicant claimed that the Deputy Registrar lacked the power to reject a record of appeal, as his powers were only limited to rejecting pleadings and that the Deputy Registrar erred in declining to allow the record of appeal by claiming that the applicant was not entitled to file its appeal as of right but should have instead sought certification before the Court of Appeal.

The respondent averred that the intended appeal did not involve a matter of constitutional interpretation or application and that the applicants application was unmeritorious as it sought to undermine the principle of finality in legal proceedings. The respondent further averred that the Deputy Registrar was vested with power under rule 4A(2) of the Supreme Court (Amendment) Rules 2016 to reject pleadings and therefore acted judicially.

Issues

1. Whether the Deputy Registrar of the Supreme Court had the jurisdiction to decline to admit a partys record of appeal. 

Relevant provisions of the law

Supreme Court (Amendment) Rules, 2016 (repealed)

Rule 4A(1) - The role of the Registrar shall be to?

b. decline to admit pleadings that are not in accordance with the Constitution, the Act, the relevant rule or the courts practice directions for filings;

Rule 4A (2) - Any party aggrieved by a decision of the Registrar made under this rule may apply to a single judge of the court for a review of the decision.

Held

1. The Deputy Registrar had the opportunity to review and consider the record of appeal that the applicant intended to be admitted and proceeded to issue reasons that were explanatory as to why the intended appeal could not be admitted. Furthermore, the Deputy Registrar then proceeded to restate the applicable law when declining to admit the applicants record of appeal.
2. By restating the relevant rules and by giving reasons as to why the applicants pleadings were declined, the Deputy Registrar was cogent and that was explanatory enough and he did not run afoul of any law. He also correctly exercised his jurisdiction and there was no reason to fault his decision.

Withdrawal of an appeal by consent of the parties does not absolve the appellant from costs.

Brief facts

In the instant appeal, the Supreme Court had already issued a ruling and declared itself of not having jurisdiction to deal with the instant matter. The only thing to be determined was matter of costs. 

Following the ruling that the court lacked jurisdiction, and six days before the hearing to determine who was to bear the costs, the parties sought leave to enter a consent to withdraw the suit. Subsequently the appellant contended that since the respondent had already been awarded costs in the ruling absolving the court of jurisdiction, that they bore no further burden of costs. The respondent contended that the appellant's claim that it should not be granted costs since it was awarded expenses in the ruling on jurisdiction was unfounded because the two proceedings were separate and the respondent was entitled to costs for both. The respondent further contended that an application's expenses could not be the same as or equal to the costs of a challenge to an appeal.

Issues

1. What principles guided courts in awarding costs?
2. Whether a court could award costs against an appellant where an appeal was withdrawn by consent of the parties.

Held

1. The Supreme Court had inherent jurisdiction to make orders on costs that it thought fit to award as it could deem it necessary for the ends of justice or prevent abuse of the process of the court pursuant to section 21(2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules, 2020.
2. Ordinarily costs followed the event and costs should not be used to punish the losing party, but to compensate the successful party for the trouble taken in prosecuting or defending a suit.  There was no prescribed definition of any set of good reasons that would justify a courts departure, in awarding costs, from the general rule costs followed the event. Courts proceeded on a case by case basis, to identify good reasons for such a departure. Matters in the domain of public interest litigation tended to be exempted from award of costs.
3. The petition was withdrawn after the respondent, in response to the petition of appeal, had filed a replying affidavit. The appeal at the time of withdrawal was ripe for hearing and had indeed been scheduled for hearing. The appellant waited for a period of about three months before withdrawing the petition six days before the scheduled date for hearing. Costs normally followed the event, an event to which costs would follow had materialized. The appellant had failed to demonstrate why it was not to bear the costs of the appeal.