Petition (Application) 2 of 2020

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Ferdinand Ndungu Waititu Babayao v Republic [2020] eKLR

Case Metadata
Case Number:	Petition (Application) 2 of 2020
Parties:	Ferdinand Ndungu Waititu Babayao v Republic
Date Delivered:	23 Sep 2020
Case Class:	Civil
Court:	Supreme Court of Kenya
Case Action:	Ruling
Judge(s):	David Kenani Maraga, Isaac Lenaola, Mohammed Khadhar Ibrahim, Smokin Charles Wanjala, Njoki Susanna Ndungu
Citation:	Ferdinand Ndungu Waititu Babayao v Republic [2020] eKLR
Case History:	(Being an application for leave to file Supplementary Record of Appeal out of time)
Court Division:	Civil
County:	Nairobi
Case Summary:	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 Whether the Supreme Court had the jurisdiction to determine and allow an application for leave to extend time. 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 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. 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. 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;* The supplementary record of appeal dated July 30, 2020 and filed on August 5, 2020 was deemed duly and properly filed. Parties to appear before the deputy registrar for further directions.
Extract:	Cases *East Africa* 1. Base Titanium Limited v County Government of Mombasa & another Petition (Application) No 22 of 2018;[2019] – (Explained) 2. Loitiptip, Anuar v Independent Electoral & Boundaries Commission & 2 others Petition (Application) No 18 of 2018; [2018] eKLR- (Mentioned) 3. Salat, Nicholas Kiptoo Arap Korir v Independent Electoral & Boundaries Commission & 7 others Application No 16 of 2014; [2014] eKLR-(Explained) Statutes *East Africa* 1. Supreme Court Act, 2011 (Act No 7 of 2011) section 21(3) –(Interpreted) 2. Supreme Court Rules, 2012 (Act No 7 of 2011 Sub Leg) rule 53 –(Interpreted) 3. Supreme Court Rules, 2020 (Act No 7 of 2011 Sub Leg) rules 15,31(4) –(Interpreted) Advocates 1. Prof T O Ojienda, SC for the Petitioner/ Applicant
Case Outcome:	Notice of Motion application allowed
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

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

PETITION (APPLICATION) NO. 2 OF 2020

BETWEEN

FERDINAND NDUNGU

WAITITU BABAYAO...............PETITIONER/APPLICANT

AND

REPUBLIC..................................................RESPONDENT

(Being an application for leave to file Supplementary Record of Appeal out of time)

RULING OF THE COURT

[1] UPON perusing the Notice of Motion application by the Petitioner/Applicant dated 7th August 2020 and filed on 11th August 2020, which application is brought pursuant to leave granted by the Deputy Registrar on 14th July 2020 as well as Rule 15 of the Supreme Court Rules, 2020; and

[2] UPON perusing the supporting affidavit of Counsel for the Petitioner/ Applicant, Prof. T.O. Ojienda, SC, deponed to on 7th August 2020; and

[3] UPON considering the written submissions by the Petitioner/Applicant dated 10th August 2020 and filed on 11th August 2020 wherein the Applicant/Petitioner contends that the delay in filing the Supplementary Record of Appeal dated 30th July 2020 and filed on 5th August 2020 was occasioned by inability to obtain the order and certified copies of typed Court proceedings from the Court of Appeal timeously despite request made on 30th December 2019 and noting;

THAT the Respondent did not file any response or submissions with regard to the application despite directions issued by the Deputy Registrar on 14th August 2020, 19th August 2020 and 26th August 2020 that submissions ought to be filed by 28th August 2020. We have however seen submissions purportedly filed by the Respondent on 16th September 2020 which are hereby rejected for being filed out of time contrary to Rule 31(4) of these Court Rules 2020; and

[4] HAVING considered the application and the submissions filed by the Petitioner/Applicant, by a unanimous decision of this Bench, we find that;

(a) This Court has the jurisdiction to consider and determine an application for leave to extend time to do anything required by its Rules - see Anuar Loitiptip v. Independent Electoral & Boundaries Commission SC Petition (App.) No. 18 of 2018; [2018] eKLR as well as Section 21(3) of the Supreme Court Act and Rule 53 of the Supreme Court Rules, 2012;

(b) That the application by the Petitioner/Applicant dated 7th August 2020 and filed on 11th August 2020 satisfies the principles set out by this Court in Base Titanium Limited v. County Government of Mombasa & another SC Petition (App). No. 22 of 2018 and earlier in Nicholas Kiptoo Arap Korir Salat v. Independent

Electoral & Boundaries Commission & 7 others SC (App) No. 16 of 2014; (2014) eKLR on extension of time;

(c) We also find that the Petitioner/Applicant has 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 is an administrative issue that cannot and should not be held against the Petitioner/Applicant;

(d) The Respondent has not opposed the application neither has he shown what prejudice shall be occasioned upon him if the Applicant’s application is allowed.

[5] In the circumstances, we now make ORDERS as follows;

(a) The Notice of Motion application by the Petitioner dated 7th August 2020 and filed on 11th August 2020 is hereby allowed;

(b) The Supplementary Record of Appeal dated 30th July 2020 and filed on 5th August 2020 is deemed as duly and properly filed;

(c) The parties to appear before the Deputy Registrar for further directions;

(d) Each party shall bear its costs.

[6] Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 23RD DAY OF SEPTEMBER 2020

........................................................................

D.K. MARAGA

CHIEF JUSTICE &

PRESIDENT OF THE SUPREME COURT

..........................................................................

M. K. IBRAHIM

JUSTICE OF THE SUPREME COURT

.......................................................................

S. C. WANJALA

JUSTICE OF THE SUPREME COURT

......................................................................

NJOKI NDUNGU

JUSTICE OF THE SUPREME COURT

..............................................................

I. LENAOLA

JUSTICE OF THE SUPREME COURT

I certify that this is a true copy of the original

REGISTRAR,

SUPREME COURT OF KENYA

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