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|Case Number:||Application 6 of 2019|
|Parties:||Harun Osoro Nyamboki v Peter Mujunga Gathuru|
|Date Delivered:||30 Apr 2019|
|Court:||Supreme Court of Kenya|
|Judge(s):||Isaac Lenaola, Mohammed Khadhar Ibrahim, Philomena Mbete Mwilu, Smokin C Wanjala, Susanna Njoki Ndungu|
|Citation:||Harun Osoro Nyamboki v Peter Mujunga Gathuru  eKLR|
|Case History:||Being an application for extension of time to file and serve a Notice of Appeal and an Appeal out of time against the Ruling and Orders of the Court of Appeal (Karanja, Warsame & Azangalala, JJ.A) in Civil Appeal No. 184 of 2004 dated and delivered at Nairobi on the 27th May, 2016|
|History Docket No:||Civil Appeal184 of 2004|
|History Judges:||Festus Azangalala, Mohammed Abdullahi Warsame, Wanjiru Karanja|
Factors to consider in determining whether to allow an application for extension of time to file an appeal at the Supreme Court
Harun Osoro Nyamboki v Peter Mujunga Gathuru  eKLR
Application No. 6 of 2019
Supreme Court of Kenya
P M Mwilu DCJ &VP; M K Ibrahim, S Wanjala, N S Ndungu, & I Lenaola, SCJJ
April 30, 2019.
Reported by Kakai Toili & Flora Weru
Appeals-appeals to the Supreme Court-timelines for filing appeals-extension of time for filing appeals-factors to consider-what were the factors to consider in determining whether to allow an application for extension of time to file an appeal at the Supreme Court
The applicant filed the instant application seeking an extension of time to file an appeal out of time. The applicant contended that the delay in filing the notice of appeal was occasioned by the mistaken knowledge and belief that his former advocates had filed the notice of appeal in the Court of Appeal, and that he should not be punished for counsel’s error. The applicant also contended that the applicant only became aware of the advocates’ failure to file the notice in December 2018.
Application dismissed, applicant to bear costs.
1. Supreme Court Act, 2011 (Act No 7 of 2011) section 3 – (Interpreted)
2. Supreme Court Rules 2012(Act No 7 of 2011 Sub Leg) rules 3(2) (5); 31; 33; 53 – (Interpreted)
3. Consitituion of Kenya, 2010 article 163(4) (b) (5) – (Interpreted)
|Case Outcome:||Application dismissed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA
(Corum: Mwilu; DCJ &V-P, Ibrahim, Wanjala, Njoki & Lenaola, SCJJ)
APPLICATION NO. 6 OF 2019
HARUN OSORO NYAMBOKI...........APPLICANT
PETER MUJUNGA GATHURU....RESPONDENT
(Being an application for extension of time to file and serve a Notice of Appeal and an Appeal out of time against the Ruling and Orders of the Court of Appeal (Karanja, Warsame & Azangalala, JJ.A) in Civil Appeal No. 184 of 2004 dated and delivered at Nairobi on the 27th May, 2016).
RULING OF THE COURT
 UPON perusing the Notice of Motion Application by the applicant dated 20th February 2019, brought under Section 3 of the Supreme Court Act and Rules 3(2) & (5), 31, 33 and 53 of the Supreme Court Rules 2012, seeking an extension of time to file an appeal out of time against the Judgment and Orders of 27th May, 2016 the Court of Appeal in Civil Appeal No. 184 of 2004; and
 UPON reading the Applicant’s grounds in support of the application and the supporting affidavit sworn on 20th February, 2019; and
 UPON considering the applicant’s written submissions dated 20th February, 2019 and filed on 22nd February, 2019 wherein the applicant submits that the delay in filing the Notice of appeal was occasioned by the mistaken knowledge and belief that his former advocates Messers Oraro and Company Advocates, had filed the Notice of Appeal in the Court of Appeal, and that he should not be punished for counsel’s error; that the Applicant only became aware of the advocates’ failure to file the Notice in December 2018; that further, the Applicant was advised by its advocates on record, that his case required certification before admission to the Supreme Court as was the principle set in Re The Matter of the Interim Independent Electoral Commission, Appeal No. 2 of 2011; that the decision of this Court in Geoffrey Asanyo & 3 Others v. the Attorney General Petition No. 21 of 2015 has established an exemption to the principles in the Re Interim Case allowing the Supreme Court to exercise its inherent jurisdiction to right jurisdictional wrongs committed by the superior Courts, in instances where the issues of appeal have not arisen through the judicial hierarchy; and, that the said decision has therefore presented the Applicant with a new shot at justice; and
 UPON reading the respondent’s replying affidavit sworn on 13th March 2019 and filed on 15th March 2019 in which he opposed the Application, on the basis that the same had been filed out of time, with no credible explanation for the inordinate delay; and that since the Applicant’s applications for certification under Article 163(4)(b) and under Article 163 (5) of the Constitution had been dismissed by the Court of Appeal and this Court respectively, the present Application is an afterthought, replete with falsehoods and deliberate distortion of facts, in an attempt to mislead the Court; and
 UPON considering the respondent’s written submissions dated 13th March 2019 and filed on 15th March, 2019 in which, the respondent argues that this court has no jurisdiction to hear and determine this application, having heard and dismissed the application for certification under Article 163 (5) of the Constitution; that the delay is inordinate, inexcusable and/or unreasonable; that he has suffered great prejudice since 1983 and will continue to suffer should the application be allowed; and, that the Application is an afterthought and an abuse of Court process;
 WE FIND as follows;
a. The jurisprudence of this Court on the considerations for grant or denial of an application for extension of time was well expressed in Nicholas Kiptoo Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others Application No. 16 of 2014 and Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others SC Application No. 15 of 2014; and
b. In determining such an application, the Court has to consider whether the explanation given for any delay is reasonable and credible; whether there also exist extenuating circumstances to enable the Court exercise its unfettered jurisdiction; and that the delay, in any event, should not be so inordinate as to leave no doubt, that an applicant has been slothful, and filed such an application as an after-thought.
c. In the present case, the four year (4) and two month (2) has neither been adequately explained, nor is the justification offered by the applicant credible. The delay is both untenable and unreasonable.
 HAVING considered the Application and the Affidavit in support filed in support thereto, the Replying Affidavit in opposition thereof, and the written submissions of the respective parties, by a unanimous decision of this Bench, we make the following Orders under Section 23(2) (b) of the Supreme Court Act 2011, and Rules 21 and 23 of the Supreme Court Rules, 2012;
i. The application dated 20th February, 2019 and filed on 22nd February, 2019 is hereby dismissed.
ii. The Applicant shall bear the costs of this application.
DATED and DELIVERED at NAIROBI this 30TH day of APRIL 2019.
P. M. MWILU M. K. IBRAHIM
DEPUTY CHIEF JUSTICE & JUSTICE OF THE SUPREME COURT
VICE-PRESIDENT OF THE SUPREME COURT
S. C. WANJALA NJOKI NDUNGU
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT
JUSTICE OF THE SUPREME COURT
I certify that this is a true copy of the original
SUPREME COURT OF KENYA