REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI

(Coram: Maraga (CJ & P), Ibrahim, Ojwang, Wanjala, & Njoki, SCJJ)

APPLICATION NO. 20 OF 2019

BETWEEN

ROSEMARY WANJA MWAGIRU...............................................1^ST APPLICANT

STEPHEN MBUGUA MWAGIRU...............................................2^ND APPLICANT

ROBERT GITHUI.........................................................................3^RD APPLICANT

AND

THE ATTORNEY GENERAL..................................................1^ST RESPONDENT

TATU CITY LIMITED..............................................................2^ND RESPONDENT

KOFINANCE COMPANY LIMITED....................................3^RD RESPONDENT

DIRECTOR OF PUBLIC PROSECUTION...........................4^TH RESPONDENT

__________________________________________________________

RULING OF THE COURT

[1] UPON perusing the Notice of Motion Application dated 9^th July 2019, and filed on even date, for extension of time to file an appeal and record of appeal out of time, against the Judgment and Orders of the Court of Appeal in Civil Appeal No. 349 of 2013 delivered on 10^th May, 2019, brought under the Provisions of Article 163 (4) of the Constitution, Sections 21(2), 24(1) of the Supreme Court Act and Rules 21, 23, 26 and 53 of the Supreme Court Rules, 2012; and

[2] UPON reading the Applicants’ grounds in support and the Supporting Affidavit, sworn by Rosemary Wanja Mwagiru on 28^th September 2018, wherein it is averred, that the delay in filing the appeal and record of appeal in time, was occasioned by the unavailability of certified proceeding from the Court of Appeal, and by the fact that, the applicant’s advocate on record, Dr. Gibson Kamau Kuria, was unwell and admitted to Nairobi Hospital between 29^th May 2019 and 25^th June 2019; and

[3] UPON reading the 2^nd and 3^rd Respondents’ Notice of Preliminary Objection dated 16^th July 2019, challenging this Court’s jurisdiction to issue the orders sought, on grounds that, the intended appeal, is not one involving the interpretation and application of the Constitution, pursuant to Article 163 (4) (a) of the Constitution, and that the Applicants have not sought Certification, under Article 163(4) (b) of the Constitution; and

[3] UPON considering the Applicants’ written submissions, in support of the Motion filed on 9^th July 2019, and the written submissions in opposition to the Preliminary Objection, dated 22^nd July 2019, wherein they restate the reasons for the delay, and contend that this court has jurisdiction, to hear and determine the Application; that the intended appeal challenges the Court of Appeal’s interpretation and application of Article 157(6) and (10) of the Constitution; and

[4] UPON considering the written submissions by the 2^nd and 3rd Respondents dated 29^th July 2019, in support of the Preliminary Objection, wherein it is contended that this Court lacks jurisdiction, under Article 163(4)(a) of the Constitution to hear and determine the intended appeal, as the same does not involve a question of constitutional interpretation and application; that the High Court and the Court of Appeal  did not deal with the interpretation or application of Article 157 (6) of the Constitution or any other  constitutional provision; that Article 157(6) of the Constitution or any other constitutional provisions did not form the basis of the judgment of the Appellate Court; that the Applicants therefore, ought to have sought Certification from the Court of Appeal for this Court to assume jurisdiction; and

[5] UPON considering the written submissions by the 4^th Respondent, dated 12^th September 2019, in support of the Preliminary Objection, in which it agrees in substance with the 2^nd and 3^rd Respondents that this Court lacks jurisdiction to entertain the application and the intended appeal; and

[6] HAVING CONSIDERED the questions at the core of the Application viz: whether this Court has jurisdiction under Article 163 (4) (a), to entertain the intended appeal and whether the applicants herein, have made a compelling case for this Court to exercise discretion to grant the orders for enlargement of time.  By a unanimous decision of this Bench, pursuant to the provisions of Article 163 (4) (a), Sections 21(2) of the Supreme Court Act, 2011 and Rules 21, 23 and 53 of the Supreme Court Rules, 2012, we find as follows:

(a) While the inability by an applicant, to obtain certified copies from the Court of Appeal in good time, would in ordinary circumstances, be reason enough for the extension of time by this Court, such reason, will not suffice in circumstances where, the intended appeal, is premised upon Article 163 (4) (a) of the Constitution. In such a scenario, the applicant must satisfy the Court, that his intended appeal, is one involving the interpretation and/or application of the Constitution.

(b) A perusal of the intended appeal, and record thereof, annexed by the Applicants, reveals that neither the High Court, nor Court of Appeal, engaged in any exercise of interpretation or application of Article 157(6) and (10) of the Constitution. In keeping with this Court’s decision in Lawrence Nduttu & 6000 Others v. Kenya Breweries Ltd & Another SC Petition No. 3 of 2012 [2012] eKLR, we find no basis upon which the Application for extension of time can be sustained. As clearly enunciated in that case, to successfully invoke the provisions of Article 163 (4) (a) of the Constitution, an appellant must be challenging the interpretation or application of the Constitution, which the Court of Appeal used to dispose of the matter in that forum. Such a party, must be faulting the Court of Appeal, on the basis of such interpretation.

In the circumstances, we hereby Order that:

DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF DECEMBER, 2019.

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D. K. MARAGA                                                   M. K. IBRAHIM

CHIEF JUSTICE & PRESIDENT                     JUSTICE OF THE SUPREME COURT         

OF THE SUPREME COURT            

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J. B. OJWANG                                                        S. C. WANJALA

JUSTICE OF THE SUPEME COURT                 JUSTICE OF THE SUPEME COURT     

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NJOKI NDUNGU

JUSTICE OF THE SUPREME COURT

I certify that this is a true copy of the original

REGISTRAR,

SUPREME COURT OF KENYA