Guiding principles in extension of time to file appeals at the Supreme Court

Brief facts

The instant notice of motion application sought the extension of time within which to file and serve a notice of appeal. The applicant was aggrieved by two related decisions of the Court of Appeal and preferred an application for review. The applicant being dissatisfied with the decision of the Court of Appeal in dismissing its review application filed a notice of appeal dated May 11, 2022, on May 17, 2022, five (5) days late and served the same on the respondent on May 20, 2022.

The applicant claimed that the delay was inadvertent as it was due to the complexity of the issues as well as seeking approval following its internal protocols being a State corporation. Further, that the failure to file and serve the notice of appeal within time was also not intentional but due to counsels failure to advise the court clerk of the urgency of the matter and the deadline of May 12, 2022.

Issues

What were the guiding principles in extension of time and whether a delay of 7 months in filing an application for certification without explanation was reasonable. 

Held

1. The court, under rule 15(2) of the Supreme Court Rules, 2020 had unfettered discretionary powers to extend the time limited by the Rules or by any of its decisions. Any person intending to appeal to the court was required by rule 36(1) of the Supreme Court Rules, 2020, to file a notice of appeal within fourteen days from the date of the decision intended to be challenged.
2. The guiding principles in extension of time were; 
   1. extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;
   2. a party who sought for extension of time had the burden of laying a basis to the satisfaction of the court;
   3. whether the court should exercise the discretion to extend time, was a consideration to be made on a case-to-case basis;
   4. whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
   5. whether there would be any prejudice suffered by the respondents if the extension was granted;
   6. whether the application had been brought without undue delay; and
   7. whether in certain cases, like election petitions, public interest should be a consideration for extending time.
3. The initial delay of five days in filing the notice of appeal was not inordinate and had been sufficiently explained by counsel. Be that as it may, the delay that concerned the court was from service of the notice of appeal on May 20, 2022 to January 18, 2023 when the applicant elected to pursue an appeal before the Supreme Court, and in noting the error filed the instant application; a period of over seven (7) months. Though the Supreme Court Rules, 2020 did not prescribe a timeline within which a party must seek certification, a period of over seven (7) months without explanation could not be termed as reasonable. Rule 38 of the Supreme Court Rules, 2020 required the institution of an appeal within thirty (30) days from either the date of filing the notice of appeal or after the grant of certification, demonstrating the need to move with speed in pursuing an appeal before the court.
4. Extension of time was an equitable remedy, the grant of which involved the exercise of judicial discretion. Equity aided the vigilant and not the indolent. The court had great difficulty reconciling a party that lodged its notice of appeal on May 17, 2022, on August 2, 2022 released funds to its opponents in fulfilment of the judgment of the Court of Appeal yet waited another five (5) months before arriving at a decision to pursue an appeal to the instant court by way of certification. The concept of timelines and timeliness was a vital ingredient in the quest for efficient and effective governance under the Constitution which must be adhered to. The applicants explanation in the circumstances was neither reasonable nor satisfactory and great prejudice would be occasioned to the respondents if the application was to be allowed.

Scope of the Supreme Courts jurisdiction to review its judgements to correct oversight or clerical errors.

Brief facts

On January 27, 2023 the Supreme Court delivered a judgment holding that the applicants freedom from inhuman treatment as protected under section 74(1) of the repealed Constitution were violated by the Government of Kenya and awarded each of the applicants damages of Kshs 2,500,000. The court however, did not make an order on the payment of interest notwithstanding that the applicants had prayed for interest on the damages awarded in the consolidated appeal. Aggrieved the appellants filed the instant application for review in which they sought for the orders to be amended to include an award of interests on the damages.  

The respondents did not file a response to the motion.

Issues

Whether the jurisdiction of the Supreme Court to correct oversight or clerical errors in its own judgements extended to reviewing a judgment in which it had awarded damages to include an award of interests on the damages which it had omitted. 

Held

1. Under section 21(4) of the Supreme Court Act , the Supreme Court could on its motion or on application by any party with notice to the other or others, correct any oversight or clerical error of computation or other error apparent on such judgment, ruling or order and such correction would constitute part of the judgment, ruling or order of the court.
2. The scope of the courts jurisdiction to review its judgment under section 21(4) of the Supreme Court Act which embodied the slip rule. The slip rule permitted a court of law to correct errors that were apparent on the face of the judgment, ruling, or order of the court. Such errors had to be so obvious that their correction could not generate any controversy, regarding the judgment or decision of the court. By the same token, such errors had to be of such nature that their correction would not change the substance of the judgment or alter the clear intention of the court. The slip rule did not confer upon a court, any jurisdiction or powers to sit on appeal over its own judgment, or, to extensively review such judgment as to substantially alter it.
3. The court awarded the applicants damages at Kshs. 2,500,000. There was no indication that the court intended to deny the applicants interest on the damages awarded. The omission to award interest fell within the bounds of the error(s) contemplated under section 21(4) of the Supreme Court Act; and review of the judgment in issue to award interest would not alter the substance thereof rather it would give effect to the courts intention. The judgment was reviewed to include an award of interest on the damages at court rates from January 27, 2023 until payment in full.

Public interest litigants ought not to seek costs should they succeed in litigation in order to avoid apparent self interests.

Brief facts

The instant application sought the review and vacation of the order on costs against the applicant in the ruling delivered by a single judge of the court and an order that there be no costs whatever the outcome of the application. The applicant claimed that the judge awarded costs against the applicant purely on the costs follow the event' rule and without any finding of bad faith, ill motive, misconduct or frivolity on its part. The applicant further claimed that the single judges determination on costs was infirm because the judge failed to consider all relevant factors necessary to the determination of costs payable by a losing party. The applicant also claimed that the judge awarded costs to the 13^th and 14^th respondent who had, through their advocates, decided not to participate in the proceedings and instead left the matter entirely in the hands of the court.

Issues

1. Whether public interest litigants should seek costs should they succeed in the litigation. 
2. What was the primary consideration in constitutional litigation when awarding costs? 
3. Whether costs could be awarded to a party that had not spent time or resources in prosecuting or defending a matter. 
4. Whether a larger bench of the Supreme Court could review the decision of a single judge of the Supreme Court where an injustice was apparent in the decision. 

Relevant provisions of the law

Supreme Court Act, 2011

Section 23 - Exercise of powers of the Court

(2C) A party aggrieved by the decision of a single judge or two judges may apply for review of the decision by five or more judges of the Court.

Supreme Court Rules, 2020

Rule 6 - Filing of petition

(3) A petition is considered filed upon

(a) payment of the prescribed court fee;

(b) depositing the security for costs; and

(c) stamping by the Registrar.

Held

1. The court had jurisdiction under section 23(2C) of the Supreme Court Act, 2011 to review the decision of a single judge. One of the guiding principles for application(s) for review of a decision of the court made in exercise of discretion was that the applicant had to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise of discretion and as a result a wrong decision was arrived at; or it was manifest from the decision as a whole that the judge had been clearly wrong and as a result, there had been an apparent injustice.
2. Equal protection under the law required that costs awards should not be dependent on whether the parties were acting in their own interests or in the public interest. Nor should they be determined by whether the parties were financially well-endowed or indigent. The primary consideration in constitutional litigation had to be the way in which a costs order would hinder or promote the advancement of constitutional justice. 
3. Public interest litigation aimed to address genuine public wrongs where legal action was initiated for the enforcement and advancement of constitutional justice and public interest. While doing so, public interest litigants must not themselves fall into the temptation of seeking for costs should they succeed in the litigation because by doing so, self-interest, and not public interest, would be apparent and they would in such situations be amenable to an adverse order on costs should they not succeed.
4. As the application in which costs were awarded against the applicant arose from a decision by the Registrar and under rule 6(3) of the Supreme Court Rules the decision of the single judge ought to be final. The grant of an order of costs to the 13^th and 14^th respondents portended no difficulty as they did not participate in any meaningful way and which would entitle them to costs. Costs were not awarded to a party that had not spent time or resources in prosecuting or defending a matter and the costs follow the event principle would in the circumstances not be applicable. Under section 23(2C) of the Supreme Court Act, the court had jurisdiction to overturn the exercise of discretion by the single judge. 
5. The nature of the litigation between the parties did not feature at all as the substance of the impugned ruling was the timeline for filing of a notice of appeal to the court. The single judge found that the applicant had failed to adhere to that timeline without a plausible explanation.
6. Where an injustice was apparent in the single judge decision, a larger Bench could undo the injustice and the finality clause in rule 6(3) of the Supreme Court Rules would not be a bar to a review of that decision more so on the narrow issue of costs. The public interest element in the case before the superior courts below was obvious and so the costs followed the event order was made in error by the single judge. In stating so, the court was not in any way invalidating that rule because it served a useful purpose in proceedings before the court. 
7. The proper order to have been made by the single judge was that there would not have been reason to order the applicant to pay costs to the respondents, and in the instant application, the applicant was also not to benefit from an award of costs.