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THE SUPREME COURT RULES, 2011
Revoked by Legal Notice 123 of 2012 on 1st February, 2013
Revoked by L.N. 123/2012, r. 56.
THE SUPREME COURT RULES, 2011
Revoked by Legal Notice 123 of 2012 on 1st February, 2013
THE SUPREME COURT RULES, 2012
Revoked by Legal Notice 6 of 2020 on 21st February, 2020
Revoked by L.N. 6/2020, r. 67.
THE SUPREME COURT RULES, 2012
Revoked by Legal Notice 6 of 2020 on 21st February, 2020
Revoked by L.N. 6/2020, r. 67.
THE SUPREME COURT RULES, 2012
Revoked by Legal Notice 6 of 2020 on 21st February, 2020
THE SUPREME COURT (PRESIDENTIAL ELECTION PETITION) RULES, 2013
Revoked by Legal Notice 113 of 2017 on 28th July, 2017
Revoked by L.N. 113/2017, r. 27.
THE SUPREME COURT (PRESIDENTIAL ELECTION PETITION) RULES, 2013
Revoked by Legal Notice 113 of 2017 on 28th July, 2017
THE SUPREME COURT (PRESIDENTIAL ELECTION PETITION) RULES, 2017
ARRANGEMENT OF RULES
| 4. |
Application of these Rules
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| 5. |
Compliance with these Rules
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| 9. |
Affidavits by witnesses
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| 13. |
Computation of time in multiple petitions
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| 15. |
Issues for determination during pre-trial conference
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| 17. |
Interlocutory applications
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| 17A. |
Third party applications
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| 19. |
Hearing to proceed uninterrupted
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| 20. |
Withdrawal of the petition and substitution of a petitioner
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| 23. |
Determination of a petition
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| 26. |
Review of these Rules
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| 27. |
Revocation of L.N. 15/2013
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SCHEDULES
THE SUPREME COURT (PRESIDENTIAL ELECTION PETITION) RULES, 2017
| 1. |
Citation
These Rules may be cited as the Supreme Court (Presidential Election Petition) Rules, 2017.
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| 2. |
Interpretation
In these Rules, unless the context otherwise requires —
"Act" means the Supreme Court Act (No. 7 of 2011);
"Commission" means the Independent Electoral and Boundaries Commission established under Article 88 of the Constitution;
"Court" means the Supreme Court;
"document" includes an electronic document;
"electronic document" means any text, graphic or spreadsheet generated and stored in any electronic media content, other than computer programs or system files, that is intended to be used in either electronic form or as printed output;
"election" means an election of the President in accordance with the Article 138 and 140 of the Constitution;
"Judge" means a Judge of the Court;
"nomination" has the meaning assigned to it under the Elections Act, 20ll (No. 24 of 2011);
"petition" means a presidential election petition, and includes an affidavit required by these Rules to accompany the petition;
"petitioner" means a person filing a petition and includes a crosspetitioner;
"practice directions" means practice directions issued by the Chief Justice under rule 25;
"Registrar" means the Registrar of the Court and includes a Deputy Registrar; and
"respondent" means the President-elect and includes the Deputy President-elect, and any other person named in the petition as a respondent.
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| 3. |
Object of these Rules
The object of these Rules is to enable the Court to exercise its exclusive original jurisdiction under Article 163(3)(a) of the Constitution.
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| 4. |
Application of these Rules
| (1) |
These Rules apply to petitions in respect of presidential elections and includes petition arising —
| (a) |
upon declaration by the Commission of the President—elect;
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| (b) |
pursuant to Article 138(l), (2), (3), (4), (5), (6) and (10); and
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| (c) |
pursuant to Article 140 of the Constitution;
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| (2) |
Where there is no applicable provision in the Act or in these Rules, the procedures set out in the Supreme Court Rules, 2012, in so far as they are not inconsistent with the Act or these Rules, shall apply to all election petitions.
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| 5. |
Compliance with these Rules
The effect of any failure to comply with these Rules shall be a matter for determination at the Court's discretion subject to the provisions of Article 159(2)(d) of the Constitution.
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| 6. |
Filing of petition
| (1) |
A petition challenging the election of the President-elect shall be filed in Court within seven days after the date of the declaration of the results of the presidential election.
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| (2) |
The petitioner shall, on filing a petition, deposit a sum of one million shillings as security for costs.
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| (3) |
A petition is considered filed upon—
| (a) |
payment of the prescribed court fee;
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| (b) |
depositing the security for costs; and
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| (c) |
stamping by the Registrar.
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| 7. |
Petitions generally
A petition under these Rules shall conform to the provisions of the First Schedule and shall be in Form A set out in the Second Schedule.
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| 8. |
Grounds of a petition
The grounds upon which a petition may be filed include—
| (a) |
the validity of the conduct of a presidential election;
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| (b) |
the validity of the qualification of a President-elect;
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| (c) |
the commission of an election offence as provided under the Election Offences Act (No. 37 of 2016);
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| (d) |
the validity of the nomination of a presidential candidate; or
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| (e) |
any other ground that the Court deems sufficient, provided such ground shall not be frivolous, vexatious or scandalous.
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| 9. |
Affidavits by witnesses
A petitioner shall, at the time of filing the petition, file an affidavit sworn by a witness setting out the substance of the evidence relied on.
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| 10. |
Service of petition
| (1) |
A petitioner shall, within two days of filing, serve the petition on the respondent—
| (a) |
directly on the respondent; or
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| (b) |
by advertisement in a newspaper with nationwide circulation.
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| (2) |
Subject to sub rule (1), the petitioner shall, within six hours of filing the petition, serve the respondent with the petition by electronic means.
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| 11. |
Response to petition
| (1) |
On service of a petition under rule 10, a respondent who Responsetopetition intends to oppose the petition may, within four days of service of the petition, file and serye a response which shall—
| (a) |
be in form of an answer to the petition in the manner specified in Form B set out in the Second ResponsetopetitionSchedule; and
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| (b) |
be accompanied by a replying affidavit(s) sworn by the respondent and any witnesses, setting out the substance of the evidence relied on.
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| (2) |
Where the respondent does not intend to oppose the petition, the respondent shall —
| (a) |
file a notice of intention not to oppose the petition within three days of service of the petition in Form C set out in the Second Schedule; and
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| (b) |
cause a copy of the notice to be served upon the petitioner.
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| (3) |
Subject to the Court's direction, a respondent who has given notice of intention not to oppose a petition under sub-rule (2) shall not be allowed to appear or act as a party in the Petition in any subsequent proceedings.
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| 12. |
Close of pleadings
The pleadings shall be closed upon filing a response to a petition or notice of intention not to oppose the petition under Rule 11.
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| 13. |
Computation of time in multiple petitions
Where multiple petitions are filed, time, for purposes of Article 140(2) of the Constitution, starts running on the date the last petition is filed.
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| 14. |
Pre-trial conference
| (1) |
There shall be a pre-trial conference on the eighth day after filing of the petition.
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| (2) |
The Registrar shall notify all the parties to the petition of the date and time of the conference in Form D set out in the Second Schedule.
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| 15. |
Issues for determination during pre-trial conference
The Court shall, at the pre-trial conference —
| (a) |
frame contested and uncontested issues in the petition;
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| (b) |
consider consolidation of petitions in cases where more than one petition is filed;
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| (c) |
give directions specifying the place and time of the hearing of the petition; and
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| (d) |
make such other orders as may be necessary to ensure a fair determination of the petition.
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| 16. |
written submissions
| (1) |
Written submissions shall be lodged in accordance with the directions of the Court.
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| (2) |
Written submissions shall be divided into paragraphs, numbered consecutively and each paragraph confined to a distinct portion of the subject.
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| (3) |
Written submissions shall be printed—
| (a) |
on one side of the paper only with the printed pages facing up on the left;
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| (b) |
in at least font size twelve;
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| (c) |
with at least one and one-half line spacing, except for quotations from authorities, which shall be indented and single-spaced; and
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| (d) |
with margins of no less than three centimetres by one and one-half inches.
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| 17. |
Interlocutory applications
| (1) |
An interlocutory application may be made within a day after the close of pleadings and shall be determined before the hearing commences on the basis of written submissions not exceeding five pages.
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| (2) |
An interlocutory application shall not be filed after the hearing of the petition has commenced, if the interlocutory application could have, by its nature, been brought before the commencement of the hearing of the petition.
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| 18. |
Hearing of petitions
| (1) |
The Court shall immediately after the pre-trial conference commence the hearing of the petition.
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| (2) |
The petition shall be determined on the basis of affidavit evidence and written submissions.
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| (3) |
A party who has lodged written submissions under this rule may, with leave of the Court, address the Court at the hearing of the petition.
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| 19. |
Hearing to proceed uninterrupted
Save in exceptional circumstances as may be determined by the Court, the hearing of a petition once commenced shall proceed uninterrupted on a day to day basis until its conclusion.
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| 20. |
Withdrawal of the petition and substitution of a petitioner
| (1) |
A petitioner may, with leave of the Court, withdraw the petition at any stage of the proceedings.
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| (2) |
An application under sub rule ( 1) shall be by notice of motion in Form E set out in the Second Schedule and shall be supported by an affidavit.
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| (3) |
The Court may, on an application for withdrawal of a petition under sub-rule (2), grant leave on such terms as it may deem fit and just.
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| 21. |
Abatement
| (1) |
A petition shall not abate on the sole ground that a petitioner or a respondent has died in the course of the proceedings.
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| (2) |
Subject to sub-rule (1), the Court may make any order as it may deem fit and just in the circumstances.
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| 22. |
Orders of the Court
At the conclusion of the hearing of an election petition, the Court may make an order-
| (b) |
invalidating the declaration made by the Commission under Article 138 (5) of the Constitution;
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| (c) |
declaring the election of the President-elect to be—
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| (e) |
as it may deem fit and just in the circumstances.
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| 23. |
Determination of a petition
| (1) |
Within fourteen days after filing of a petition, the Court shall determine the petition but may reserve its reasons to a date not later than twenty one days from the date the Court determines the petition.
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| (2) |
The decision of the Court shall be final.
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| 24. |
Fees and costs
| (1) |
The filing fees for petitions and other documents filed under these Rules shall be as set out in the Third Schedule.
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| (2) |
The Registrar shall be a taxing officer with power to tax the costs arising out of the proceedings under these Rules as between the parties.
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| (3) |
The costs taxed by the registrar under sub rule (2) shall be certified by the Court.
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| 25. |
Practice directions
| (1) |
The Chief Justice may issue practice directions for the better carrying out of the provisions of these Rules.
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| (2) |
Where these Rules do not provide for the exercising of a right or for a procedure, the Court may adopt any procedure that is not inconsistent with the Constitution, the Act, these Rules or practice directions.
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| 26. |
Review of these Rules
The Court may review these Rules from time to time.
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| 27. |
Revocation of L.N. 15/2013
The Supreme Court (Presidential Election Petition) Rules, 2013 are revoked.
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FIRST SCHEDULE
PROVISIONS RELATING TO PETITIONS AND AFFIDAVITS
| 1. |
A petition may be filed by several persons who may be joined as co-petitioners.
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| 2. |
A petition shall be signed by the petitioner or all*the petitioners if they are more than one, or by the duly authorized advocate.
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| 3. |
A petition shall be divided into paragraphs, numbered consecutively, each paragraph being confined to a distinct portion of the subject, and shall be printed or typed legibly.
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| 4. |
A petition shall briefly set out the facts and grounds relied on to sustain the relief claimed.
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| 5. |
A petitioner shall lodge, together with the petition, at least eight copies of the petition and all documents which accompany it.
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| 6. |
An Affidavit in support of the petition shall be sworn personally by the petitioner or by one of the petitioners, if more than one, and shall—
| (a) |
contain the grounds on which relief is sought, setting out the facts relied on by the petitioner or petitioners;
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| (b) |
be divided into paragraphs, each of which, as nearly as may be, shall be confined to a distinct portion of the subject, and every paragraph shall be numbered consecutively; and
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| (c) |
conclude with a statement setting out particulars of the relief sought.
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SECOND SCHEDULE
IN THE SUPREME COURT OF KENYA AT NAIROBI
Petition No. ........................ of 20 ...............
......................................................... Petitioner
........................................................... Respondent
| 1. |
The humble petition of AB is as follows ....................... (set out, in consecutive paragraphs the specific issues contended by (each of the) petitioner(s) referring where necessary to the section of the Constitution or any Act of Parliament or decided cases relied upon.)
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| 2. |
(briefly set out the point of law raised).
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| 3. |
(briefly set out the facts necessary to enable the Court to properly decide the point of law raised).
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| 4. |
(set out in summary the grounds for the petition).
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| 5. |
(set out the arguments supporting each of the grounds of the petition).
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| 6. |
The question or issue for the determination by the Court is .......................... (state the question).
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| 7. |
The relief sought by the petitioner is ..............................
DATED this ............... day of ................. 20 ................
Signed ..........................................
Petitioner ................................
............................................... Advocate for the petitioner
To:
The Supreme Court of Kenya
Copies to be served on .............................
.......................................................
Lodged in the Registry at .......................... on the .............. day of ...............
............................
Registrar
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IN THE SUPREME COURT OF KENYA AT NAIROBI
Petition No. ...................... of 20 ...............
.............................................................. Petitioner
.......................................................... Respondent
In response to the petition, the respondents state that ................................ (state the facts and grounds on which the respondents rely).
Wherefore your respondents pray that it be determined that the said ................................. was duly elected and the election was valid or invalid.
Dated .............................. 20 ............ (Signed) A.
Dated ............................. 20 ............ (Signed) B
IN THE SUPREME COURT OF KENYA AT NAIROBI
Petition No. ...................... of 20 ...............
.............................................................. Petitioner
.......................................................... Respondent
NOTICE OF INTENTION NOT TO OPPOSE THE PETITION
TAKE NOTICE that the respondent in this petition intends not to oppose the petition.
Dated this ................... day of ................ 20 .................
Signed ........................ Respondent ...........................
Advocate for the respondent
To:
The Registrar/Deputy registrar of the Supreme Court of Kenya
Copies to be served on .............................. lodged in the registry/sub-registry at .................... of ......................., 20 .............
............................
Registrar
IN THE SUPREME COURT OF KENYA AT NAIROBI
Petition No. ...................... of 20 ...............
.............................................................. Petitioner
.......................................................... Respondent
NOTICE BY REGISTRAR OF PRE-TRIAL CONFERENCE
TAKE NOTICE that the date of the pre-trial conference has been fixed on this ................. day of ..................... 20 ..............
Signed
............................
Registrar
IN THE SUPREME COURT OF KENYA AT NAIROBI
Petition No. ...................... of 20 ...............
.............................................................. Petitioner
.......................................................... Respondent
TAKE NOTICE that on ..................... the ............... day of ....................., 20 .........., at ..................... o'clock in the morning/afternoon or as soon thereafter as he can be heard, ............................................., Advocate for the above-named applicant, will move the Court for an order that ............................................
on the grounds that .........................................................
And for an order that the costs of and incidental to this application abide the result of the said appeal ................................................
The application will be supported by the affidavit of ................................ sworn on the ............................ day of ..................., 20............ The address for service of the applicant is ............................................
Dated this .............................. day of .............., 20 ...........
Signed .................................. Applicant ...........................
Advocate for the applicant
Lodged in the Registry on the ................. day of ................., 20 .............
................................
Registrar
THIRD SCHEDULE
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Item
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KSh.
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On lodging a petition.
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500,000
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On filing a response to the petition.
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20,000
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On lodging a notice of motion.
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1,500
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On lodging a notice of motion under certificate of urgency
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2,750
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On lodging an affidavit, other than an affidavit annexed to a notice of motion.
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1,150
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On filing notice of intention not to oppose the petition.
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4,000
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Filing annexures (per folio).
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50
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Filing written submissions (per folio).
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50
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THE SUPREME COURT (PRESIDENTIAL ELECTION PETITION) RULES, 2017
| 1. |
Citation
These Rules may be cited as the Supreme Court (Presidential Election Petition) Rules, 2017.
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| 2. |
Interpretation
In these Rules, unless the context otherwise requires -
"Act" means the Supreme Court Act (No. 7 of 2011);
"Commission" means the Independent Electoral and Boundaries Commission established under Article 88 of the Constitution;
"Court" has the meaning assigned to it under the Act;
"document" includes an electronic document;
"electronic document" means any text, graphic or spreadsheet generated and stored in any electronic media content, other than computer programs or system files, that is intended to be used in either electronic form or as printed output;
"election" means an election of the President in accordance with the Article 138 and 140 of the Constitution;
"filing" means presentation, verification and acknowledgement of receipt of the documents;
"Judge" has the meaning assigned to it under the Act;
"interested party" means a person that has an identifiable stake or legal interest or duty in the proceedings before the Court but is not a party to the proceedings or may not be directly involved in the matter;
"nomination" has the meaning assigned to it under the Elections Act, 2011 (No. 24 of 2011);
"petition" means a presidential election petition filed under rule 7;
"petitioner" means a person who files a petition;
"practice directions" means practice directions issued by the Chief Justice under rule 25;
"Registrar" means the Registrar of the Court and includes a Deputy Registrar; and
"respondent" means the President-elect and includes the Deputy President-elect, and any other person named in the petition as a respondent.
[L.N. 7 of 2020, r. 2.]
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| 3. |
Object of these Rules
The object of these Rules is to enable the Court to exercise its exclusive original jurisdiction under Article 163(3) (a) of the Constitution.
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| 4. |
Application of these Rules
| (1) |
These Rules apply to petitions in respect of presidential elections and includes petition arising -
| (a) |
upon declaration by the Commission of the President-elect;
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| (b) |
pursuant to Article 138(1), (2), (3), (4), (5), (6) and (10); and
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| (c) |
pursuant to Article 140 of the Constitution.
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| (2) |
Where there is no applicable provision in the Act or in these Rules, the procedures set out in the Supreme Court Rules, 2012, in so far as they are not inconsistent with the Act or these Rules, shall apply to all election petitions.
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| 5. |
Compliance with these Rules
The effect of any failure to comply with these Rules shall be a matter for determination at the Court's discretion subject to the provisions of Article 159(2)(d) of the Constitution.
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| 6. |
Filing of petition
| (1) |
A petition challenging the election of the President-elect shall be filed in Court within seven days after the date of the declaration of the results of the presidential election.
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| (2) |
The petitioner shall, on filing a petition, deposit a sum of one million shillings as security for costs.
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| (3) |
A petition is considered filed upon—
| (a) |
payment of the prescribed court fee;
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| (b) |
depositing the security for costs; and
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| (c) |
stamping by the Registrar.
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| 7. |
Petitions generally
| (1) |
A petition under these Rules shall be in Form A set out in the Second Schedule.
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| (2) |
Before filing a petition, the petitioner shall—
| (a) |
deposit a sum of one million shillings as security for costs; and
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| (b) |
pay the prescribed court fee.
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| (3) |
Where the petition is filed on the last available day of filing, it shall be filed before 1400hrs of that day.
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| (4) |
A petitioner shall ensure the electronic version of the petition and the documents in support of the petition are similar to the paper version presented.
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| (5) |
The Registrar shall reject a petition before it is filed where the intended petitioner has not conformed with this Rule.
[L.N. 7 of 2020, r. 3.]
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| 8. |
Form of petitions
| (1) |
A petition may be filed by one or more persons joined as co-petitioners.
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| (2) |
A petition shall be signed by the petitioner or all the petitioners if they are more than one, or by a person duly authorized by the petitioner.
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| (3) |
| (a) |
be divided into paragraphs and numbered consecutively;
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| (b) |
have each paragraph being confined to a distinct portion of the subject;
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| (c) |
be printed or typed legibly; and
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| (d) |
briefly set out the facts and grounds relied on to sustain the relief claimed.
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| (4) |
A petitioner shall lodge, together with the petition, at least eight copies of the petition and all documents in support of the petition.
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| (5) |
An Affidavit in support of the petition shall be sworn personally by the petitioner or by one of the petitioners, if more than one, and shall —
| (a) |
contain the grounds on which relief is sought, setting out the facts relied on by the petitioner or petitioners;
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| (b) |
be divided into paragraphs, each of which, as nearly as may be possible, shall be confined to a distinct portion of the subject, and every paragraph shall be numbered consecutively; and
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| (c) |
conclude with a statement setting out particulars of the relief sought.
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| 9. |
Affidavits by witnesses
A petitioner shall, at the time of filing the petition, file an affidavit sworn by a witness setting out the substance of the evidence relied on.
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| 10. |
Service of petition
| (1) |
A petitioner shall, within twenty-four hours of filing, serve the petition on the respondent—
| (a) |
directly on the respondent; or
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| (b) |
by advertisement in a newspaper with nationwide circulation.
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| (2) |
Subject to sub rule (l), the petitioner shall, within six hours of filing the petition, serve the respondent with the petition by electronic means.
[L.N. 7 of 2020, r. 5.]
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| 11. |
Response to petition
| (1) |
On service of a petition under rule 10, a respondent who Responsetopetition intends to oppose the petition may, within four days of service of the petition, file and serye a response which shall-
| (a) |
be in form of an answer to the petition in the manner specified in Form B set out in the Second ResponsetopetitionSchedule; and
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| (b) |
be accompanied by a replying affidavit(s) sworn by the respondent and any witnesses, setting out the substance of the evidence relied on.
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| (2) |
Where the respondent does not intend to oppose the petition, the respondent shall -
| (a) |
file a notice of intention not to oppose the petition within three days of service of the petition in Form C set out in the Second Schedule; and
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| (b) |
cause a copy of the notice to be served upon the petitioner.
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| (3) |
Subject to the Court's direction, a respondent who has given notice of intention not to oppose a petition under sub-rule (2) shall not be allowed to appear or act as a party in the Petition in any subsequent proceedings.
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| 11A. |
Rejoinder
The petitioner shall file and serve a rejoinder within twenty-four hours of being served with the response.
[L.N. 7 of 2020, r. 6.]
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| 12. |
Close of pleadings
The pleadings shall be closed upon filing a response to or notice of intention not to oppose the petition under Rule 11.
[L.N. 7 of 2020, r. 7.]
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| 13. |
Computation of time in multiple petitions
Where multiple petitions are filed, time, for purposes of Article 140(2) of the Constitution, starts running on the date the last petition is filed.
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| 14. |
Pre-trial conference
| (1) |
There shall be a pre-trial conference on the eighth day after filing of the petition.
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| (2) |
The Registrar shall notify all the parties to the petition of the date and time of the conference in Form D set out in the Second Schedule.
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| 15. |
Issues for determination during pre-trial conference
The Court shall, at the pre-trial conference —
| (a) |
frame contested and uncontested issues in the petition;
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| (b) |
consider consolidation of petitions in cases where more than one petition is filed;
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| (ba) |
determine the number of advocates that the Court shall hear on behalf of each party;
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| (bb) |
allocate time for each party to address the Court;
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| (c) |
give directions specifying the place and time of the hearing of the petition; and
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| (d) |
make such other orders as may be necessary to ensure a fair determination of the petition.
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| 16. |
written submissions
| (1) |
Written submissions together with a list of authorities and a bundle of authorities shall be lodged in accordance with the directions of the Court.
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| (2) |
Written submissions shall be divided into paragraphs, numbered consecutively and each paragraph confined to a distinct portion of the subject.
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| (3) |
Written submissions shall be printed-
| (a) |
on one side of the paper only with the printed pages facing up on the left;
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| (b) |
in at least font size twelve;
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| (c) |
with at least one and one-half line spacing, except for quotations from authorities, which shall be indented and single-spaced;
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| (d) |
with margins of no less than three centimetres by one and one-half inches; and
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| (e) |
not exceeding forty pages.
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| 17. |
Interlocutory applications
| (1) |
Any interlocutory application at the close of pleadings shall be filed together with written submissions, made in accordance with these Rules, and not exceeding five pages.
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| (2) |
Within twenty-four hours of filing the interlocutory application, the applicant shall serve the application on every respondent.
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| (3) |
The respondent shall file a response to the application together with written submissions not exceeding five pages within twenty-four hours of service.
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| (4) |
There shall be no rejoinder from the applicant in an interlocutory application.
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| (5) |
The Court may deliver the ruling on an interlocutory application by way of electronic communication to the parties.
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| (6) |
In delivering a ruling under sub rule (5), the Court may defer the giving of reasons for the decision to a later date.
[L.N. 7 of 2020, r. 10.]
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| 17A. |
Third party applications
| (1) |
A person seeking to be admitted as a friend of the Court may apply for admission at the close of pleadings.
|
| (2) |
An application made under sub-rule (1) shall include a friend of the court brief setting out the person's expertise and reasons for requesting the admission.
|
| (3) |
The Court may deliver a ruling by way of electronic communication to the applicant.
|
| (4) |
An application by any person to join the petition as an interested party shall not be allowed.
[L.N. 7 of 2020, r. 11.]
|
|
| 18. |
Hearing of petitions
| (1) |
The Court shall immediately after the pre-trial conference commence the hearing of the petition.
|
| (2) |
The petition shall be determined on the basis of affidavit evidence and written submissions.
|
| (3) |
A party who has lodged written submissions under this rule may, with leave of the Court, address the Court at the hearing of the petition.
|
|
| 19. |
Hearing to proceed uninterrupted
Save in exceptional circumstances as may be determined by the Court, the hearing of a petition once commenced shall proceed uninterrupted on a day to day basis until its conclusion.
|
| 20. |
Withdrawal of the petition and substitution of a petitioner
| (1) |
A petitioner may, with leave of the Court, withdraw the petition at any stage of the proceedings.
|
| (2) |
An application under sub rule (1) shall be by notice of motion in Form E set out in the Second Schedule and shall be supported by an affidavit.
|
| (3) |
The Court may, on an application for withdrawal of a petition under sub-rule (2), grant leave on such terms as it may deem fit and just.
|
|
| 21. |
Abatement
| (1) |
A petition shall not abate on the sole ground that a petitioner or a respondent has died in the course of the proceedings.
|
| (2) |
Subject to sub-rule (1), the Court may make any order as it may deem fit and just in the circumstances.
|
|
| 22. |
Orders of the Court
At the conclusion of the hearing of an election petition, the Court may make an order —
| (b) |
invalidating the declaration made by the Commission under Article 138(5) of the Constitution;
|
| (c) |
declaring the election of the President-elect to be—
|
| (e) |
as it may deem fit and just in the circumstances.
|
|
| 23. |
Determination of a petition
| (1) |
Within fourteen days after filing of a petition, the Court shall determine the petition but may reserve its reasons to a date not later than twenty one days from the date the Court determines the petition.
|
| (1A) |
Subject to Article 163(2) of the Constitution, all the Judges of the Court shall, as far as practicable, form the bench for hearing and determining the petition.
|
| (2) |
The decision of the Court shall be final.
[L.N. 7 of 2020, r. 12.]
|
|
| 24. |
Fees and costs
| (1) |
The filing fees for petitions and other documents filed under these Rules shall be as set out in the Third Schedule.
|
| (2) |
The Registrar shall be a taxing officer with power to tax the costs arising out of the proceedings under these Rules as between the parties.
|
| (3) |
The costs taxed by the registrar under sub rule (2) shall be certified by the Court.
|
|
| 25. |
Practice directions
| (1) |
The President of the Court may issue practice directions for the better carrying out of the provisions of these Rules.
|
| (2) |
Where these Rules do not provide for the exercising of a right or for a procedure, the Court may adopt any procedure that is not inconsistent with the Constitution, the Act, these Rules or practice directions.
[L.N. 7 of 2020, r. 13.]
|
|
| 26. |
Review of these Rules
The Court may review these Rules from time to time.
|
| 27. |
Revocation of L.N. 15/2013
The Supreme Court (Presidential Election Petition) Rules, 2013 (L.N. 15/2013) are revoked.
|
FIRST SCHEDULE
Deleted by L.N. 7 of 2020, r. 14.
SECOND SCHEDULE
IN THE SUPREME COURT OF KENYA AT NAIROBI
Petition No. ........................ of 20 ...............
......................................................... Petitioner
........................................................... Respondent
| 1. |
The humble petition of AB is as follows ....................... (set out, in consecutive paragraphs the specific issues contended by (each of the) petitioner(s) referring where necessary to the section of the Constitution or any Act of Parliament or decided cases relied upon.)
|
| 2. |
(briefly set out the point of law raised).
|
| 3. |
(briefly set out the facts necessary to enable the Court to properly decide the point of law raised).
|
| 4. |
(set out in summary the grounds for the petition).
|
| 5. |
(set out the arguments supporting each of the grounds of the petition).
|
| 6. |
The question or issue for the determination by the Court is .......................... (state the question).
|
| 7. |
The relief sought by the petitioner is ..............................
DATED this ............... day of ................. 20 ................
Signed ..........................................
Petitioner ................................
............................................... Advocate for the petitioner
To:
The Supreme Court of Kenya
Copies to be served on .............................
.......................................................
Lodged in the Registry at .......................... on the .............. day of ...............
............................
Registrar
|
IN THE SUPREME COURT OF KENYA AT NAIROBI
Petition No. ...................... of 20 ...............
.............................................................. Petitioner
.......................................................... Respondent
In response to the petition, the respondents state that ................................ (state the facts and grounds on which the respondents rely).
Wherefore your respondents pray that it be determined that the said ................................. was duly elected and the election was valid or invalid.
Dated .............................. 20 ............ (Signed) A.
Dated ............................. 20 ............ (Signed) B
IN THE SUPREME COURT OF KENYA AT NAIROBI
Petition No. ...................... of 20 ...............
.............................................................. Petitioner
.......................................................... Respondent
NOTICE OF INTENTION NOT TO OPPOSE THE PETITION
TAKE NOTICE that the respondent in this petition intends not to oppose the petition.
Dated this ................... day of ................ 20 .................
Signed ........................ Respondent ...........................
Advocate for the respondent
To:
The Registrar/Deputy registrar of the Supreme Court of Kenya
Copies to be served on .............................. lodged in the registry/sub-registry at .................... of ......................., 20 .............
............................
Registrar
IN THE SUPREME COURT OF KENYA AT NAIROBI
Petition No. ...................... of 20 ...............
.............................................................. Petitioner
.......................................................... Respondent
NOTICE BY REGISTRAR OF PRE-TRIAL CONFERENCE
TAKE NOTICE that the date of the pre-trial conference has been fixed on this ................. day of ..................... 20 ..............
Signed
............................
Registrar
IN THE SUPREME COURT OF KENYA AT NAIROBI
Petition No. ...................... of 20 ...............
.............................................................. Petitioner
.......................................................... Respondent
TAKE NOTICE that on ..................... the ............... day of ....................., 20 .........., at ..................... o'clock in the morning/afternoon or as soon thereafter as he can be heard, ............................................., Advocate for the above-named applicant, will move the Court for an order that ............................................
on the grounds that .........................................................
And for an order that the costs of and incidental to this application abide the result of the said appeal ................................................
The application will be supported by the affidavit of ................................ sworn on the ............................ day of ..................., 20............ The address for service of the applicant is ............................................
Dated this .............................. day of .............., 20 ...........
Signed .................................. Applicant ...........................
Advocate for the applicant
Lodged in the Registry on the ................. day of ................., 20 .............
................................
Registrar
THIRD SCHEDULE
[Rule 24(1), L.N. 7 of 2020, r. 15.]
|
Item
|
KSh.
|
|
Upon lodging a petition
|
500,000
|
|
Security for costs
|
1,000,000
|
|
On filing a response to the petition
|
20,000
|
|
Upon lodging a notice of motion, including under certificate of urgency
|
30,000
|
|
Upon lodging an affidavit other than an affidavit annexed to a petition
|
6,000
|
|
Filing a notice of intention not to oppose the petition
|
4,000
|
|
Filing annexures (per folio)
|
200
|
|
Filing written submissions (per folio)
|
200
|
THE SUPREME COURT (PRESIDENTIAL ELECTION PETITION) RULES, 2017
| 1. |
Citation
These Rules may be cited as the Supreme Court (Presidential Election Petition) Rules, 2017.
|
| 2. |
Interpretation
In these Rules, unless the context otherwise requires -
"Commission" means the Independent Electoral and Boundaries Commission established under Article 88 of the Constitution;
"Court" has the meaning assigned to it under the Act;
"document" includes an electronic document;
"electronic document" means any text, graphic or spreadsheet generated and stored in any electronic media content, other than computer programs or system files, that is intended to be used in either electronic form or as printed output;
"election" means an election of the President in accordance with the Article 138 and 140 of the Constitution;
"filing" means presentation, verification and acknowledgement of receipt of the documents;
"Judge" has the meaning assigned to it under the Act;
"interested party" means a person that has an identifiable stake or legal interest or duty in the proceedings before the Court but is not a party to the proceedings or may not be directly involved in the matter;
"nomination" has the meaning assigned to it under the Elections Act, 2011 (No. 24 of 2011);
"petition" means a presidential election petition filed under rule 7;
"petitioner" means a person who files a petition;
"practice directions" means practice directions issued by the Chief Justice under rule 25;
"Registrar" means the Registrar of the Court and includes a Deputy Registrar; and
"respondent" means the President-elect and includes the Deputy President-elect, and any other person named in the petition as a respondent.
|
| 3. |
Object of these Rules
The object of these Rules is to enable the Court to exercise its exclusive original jurisdiction under Article 163(3) (a) of the Constitution.
|
| 4. |
Application of these Rules
| (1) |
These Rules apply to petitions in respect of presidential elections and includes petition arising -
| (a) |
upon declaration by the Commission of the President-elect;
|
| (b) |
pursuant to Article 138(1), (2), (3), (4), (5), (6) and (10); and
|
| (c) |
pursuant to Article 140 of the Constitution.
|
|
| (2) |
Where there is no applicable provision in the Act or in these Rules, the procedures set out in the Supreme Court Rules, 2012, in so far as they are not inconsistent with the Act or these Rules, shall apply to all election petitions.
|
|
| 5. |
Compliance with these Rules
The effect of any failure to comply with these Rules shall be a matter for determination at the Court's discretion subject to the provisions of Article 159(2)(d) of the Constitution.
|
| 6. |
Filing of petition
| (1) |
A petition challenging the election of the President-elect shall be filed in Court within seven days after the date of the declaration of the results of the presidential election.
|
| (2) |
The petitioner shall, on filing a petition, deposit a sum of one million shillings as security for costs.
|
| (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.
|
|
|
| 7. |
Petitions generally
| (1) |
A petition under these Rules shall be in Form A set out in the Second Schedule.
|
| (2) |
Before filing a petition, the petitioner shall—
| (a) |
deposit a sum of one million shillings as security for costs; and
|
| (b) |
pay the prescribed court fee.
|
|
| (3) |
Where the petition is filed on the last available day of filing, it shall be filed before 1400hrs of that day.
|
| (4) |
A petitioner shall ensure the electronic version of the petition and the documents in support of the petition are similar to the paper version presented.
|
| (5) |
The Registrar shall reject a petition before it is filed where the intended petitioner has not conformed with this Rule.
|
|
| 8. |
Form of petitions
| (1) |
A petition may be filed by one or more persons joined as co-petitioners.
|
| (2) |
A petition shall be signed by the petitioner or all the petitioners if they are more than one, or by a person duly authorized by the petitioner.
|
| (3) |
| (a) |
be divided into paragraphs and numbered consecutively;
|
| (b) |
have each paragraph being confined to a distinct portion of the subject;
|
| (c) |
be printed or typed legibly; and
|
| (d) |
briefly set out the facts and grounds relied on to sustain the relief claimed.
|
|
| (4) |
A petitioner shall lodge, together with the petition, at least eight copies of the petition and all documents in support of the petition.
|
| (5) |
An Affidavit in support of the petition shall be sworn personally by the petitioner or by one of the petitioners, if more than one, and shall —
| (a) |
contain the grounds on which relief is sought, setting out the facts relied on by the petitioner or petitioners;
|
| (b) |
be divided into paragraphs, each of which, as nearly as may be possible, shall be confined to a distinct portion of the subject, and every paragraph shall be numbered consecutively; and
|
| (c) |
conclude with a statement setting out particulars of the relief sought.
|
|
|
| 9. |
Affidavits by witnesses
A petitioner shall, at the time of filing the petition, file an affidavit sworn by a witness setting out the substance of the evidence relied on.
|
| 10. |
Service of petition
| (1) |
A petitioner shall, within twenty-four hours of filing, serve the petition on the respondent—
| (a) |
directly on the respondent; or
|
| (b) |
by advertisement in a newspaper with nationwide circulation.
|
|
| (2) |
Subject to sub rule (l), the petitioner shall, within six hours of filing the petition, serve the respondent with the petition by electronic means.
|
|
| 11. |
Response to petition
| (1) |
On service of a petition under rule 10, a respondent who Responsetopetition intends to oppose the petition may, within four days of service of the petition, file and serye a response which shall-
| (a) |
be in form of an answer to the petition in the manner specified in Form B set out in the Second ResponsetopetitionSchedule; and
|
| (b) |
be accompanied by a replying affidavit(s) sworn by the respondent and any witnesses, setting out the substance of the evidence relied on.
|
|
| (2) |
Where the respondent does not intend to oppose the petition, the respondent shall -
| (a) |
file a notice of intention not to oppose the petition within three days of service of the petition in Form C set out in the Second Schedule; and
|
| (b) |
cause a copy of the notice to be served upon the petitioner.
|
|
| (3) |
Subject to the Court's direction, a respondent who has given notice of intention not to oppose a petition under sub-rule (2) shall not be allowed to appear or act as a party in the Petition in any subsequent proceedings.
|
|
| 11A. |
Rejoinder
The petitioner shall file and serve a rejoinder within twenty-four hours of being served with the response.
|
| 12. |
Close of pleadings
The pleadings shall be closed upon filing a response to or notice of intention not to oppose the petition under Rule 11.
|
| 13. |
Computation of time in multiple petitions
Where multiple petitions are filed, time, for purposes of Article 140(2) of the Constitution, starts running on the date the last petition is filed.
|
| 14. |
Pre-trial conference
| (1) |
There shall be a pre-trial conference on the eighth day after filing of the petition.
|
| (2) |
The Registrar shall notify all the parties to the petition of the date and time of the conference in Form D set out in the Second Schedule.
|
|
| 15. |
Issues for determination during pre-trial conference
The Court shall, at the pre-trial conference —
| (a) |
frame contested and uncontested issues in the petition;
|
| (b) |
consider consolidation of petitions in cases where more than one petition is filed;
|
| (ba) |
determine the number of advocates that the Court shall hear on behalf of each party;
|
| (bb) |
allocate time for each party to address the Court;
|
| (c) |
give directions specifying the place and time of the hearing of the petition; and
|
| (d) |
make such other orders as may be necessary to ensure a fair determination of the petition.
|
|
| 16. |
written submissions
| (1) |
Written submissions together with a list of authorities and a bundle of authorities shall be lodged in accordance with the directions of the Court.
|
| (2) |
Written submissions shall be divided into paragraphs, numbered consecutively and each paragraph confined to a distinct portion of the subject.
|
| (3) |
Written submissions shall be printed-
| (a) |
on one side of the paper only with the printed pages facing up on the left;
|
| (b) |
in at least font size twelve;
|
| (c) |
with at least one and one-half line spacing, except for quotations from authorities, which shall be indented and single-spaced;
|
| (d) |
with margins of no less than three centimetres by one and one-half inches; and
|
| (e) |
not exceeding forty pages.
|
|
|
| 17. |
Interlocutory applications
| (1) |
Any interlocutory application at the close of pleadings shall be filed together with written submissions, made in accordance with these Rules, and not exceeding five pages.
|
| (2) |
Within twenty-four hours of filing the interlocutory application, the applicant shall serve the application on every respondent.
|
| (3) |
The respondent shall file a response to the application together with written submissions not exceeding five pages within twenty-four hours of service.
|
| (4) |
There shall be no rejoinder from the applicant in an interlocutory application.
|
| (5) |
The Court may deliver the ruling on an interlocutory application by way of electronic communication to the parties.
|
| (6) |
In delivering a ruling under sub rule (5), the Court may defer the giving of reasons for the decision to a later date.
|
|
| 17A. |
Third party applications
| (1) |
A person seeking to be admitted as a friend of the Court may apply for admission at the close of pleadings.
|
| (2) |
An application made under sub-rule (1) shall include a friend of the court brief setting out the person's expertise and reasons for requesting the admission.
|
| (3) |
The Court may deliver a ruling by way of electronic communication to the applicant.
|
| (4) |
An application by any person to join the petition as an interested party shall not be allowed.
|
|
| 18. |
Hearing of petitions
| (1) |
The Court shall immediately after the pre-trial conference commence the hearing of the petition.
|
| (2) |
The petition shall be determined on the basis of affidavit evidence and written submissions.
|
| (3) |
A party who has lodged written submissions under this rule may, with leave of the Court, address the Court at the hearing of the petition.
|
| (4) |
Upon commencement of the hearing of the petition by the Court, litigants, their advocates and advocates’ agents shall refrain from expressing their opinion on merit, demerit or predict the outcome of the petition in any manner that would prejudice or impede Court proceedings, until judgement is delivered.
|
| (5) |
A breach of sub-rule (4) shall amount to contempt of Court under the Act and the Rules made thereunder.
|
|
| 19. |
Hearing to proceed uninterrupted
Save in exceptional circumstances as may be determined by the Court, the hearing of a petition once commenced shall proceed uninterrupted on a day to day basis until its conclusion.
|
| 20. |
Withdrawal of the petition and substitution of a petitioner
| (1) |
A petitioner may, with leave of the Court, withdraw the petition at any stage of the proceedings.
|
| (2) |
An application under sub rule (1) shall be by notice of motion in Form E set out in the Second Schedule and shall be supported by an affidavit.
|
| (3) |
The Court may, on an application for withdrawal of a petition under sub-rule (2), grant leave on such terms as it may deem fit and just.
|
|
| 21. |
Abatement
| (1) |
A petition shall not abate on the sole ground that a petitioner or a respondent has died in the course of the proceedings.
|
| (2) |
Subject to sub-rule (1), the Court may make any order as it may deem fit and just in the circumstances.
|
|
| 22. |
Orders of the Court
At the conclusion of the hearing of an election petition, the Court may make an order —
| (b) |
invalidating the declaration made by the Commission under Article 138(5) of the Constitution;
|
| (c) |
declaring the election of the President-elect to be—
|
| (e) |
as it may deem fit and just in the circumstances.
|
|
| 23. |
Determination of a petition
| (1) |
Within fourteen days after filing of a petition, the Court shall determine the petition but may reserve its reasons to a date not later than twenty one days from the date the Court determines the petition.
|
| (1A) |
Subject to Article 163(2) of the Constitution, all the Judges of the Court shall, as far as practicable, form the bench for hearing and determining the petition.
|
| (2) |
The decision of the Court shall be final.
|
|
| 24. |
Fees and costs
| (1) |
The filing fees for petitions and other documents filed under these Rules shall be as set out in the Third Schedule.
|
| (2) |
The Registrar shall be a taxing officer with power to tax the costs arising out of the proceedings under these Rules as between the parties.
|
| (3) |
The costs taxed by the registrar under sub rule (2) shall be certified by the Court.
|
|
| 25. |
Practice directions
| (1) |
The President of the Court may issue practice directions for the better carrying out of the provisions of these Rules.
|
| (2) |
Where these Rules do not provide for the exercising of a right or for a procedure, the Court may adopt any procedure that is not inconsistent with the Constitution, the Act, these Rules or practice directions.
|
|
| 26. |
Review of these Rules
The Court may review these Rules from time to time.
|
| 27. |
Revocation of L.N. 15/2013
The Supreme Court (Presidential Election Petition) Rules, 2013 (L.N. 15/2013) are revoked.
|
FIRST SCHEDULE
Deleted by LN 7 of 2020, r. 14.
SECOND SCHEDULE
IN THE SUPREME COURT OF KENYA AT NAIROBI
Petition No. ........................ of 20 ...............
......................................................... Petitioner
........................................................... Respondent
| 1. |
The humble petition of AB is as follows ....................... (set out, in consecutive paragraphs the specific issues contended by (each of the) petitioner(s) referring where necessary to the section of the Constitution or any Act of Parliament or decided cases relied upon.)
|
| 2. |
(briefly set out the point of law raised).
|
| 3. |
(briefly set out the facts necessary to enable the Court to properly decide the point of law raised).
|
| 4. |
(set out in summary the grounds for the petition).
|
| 5. |
(set out the arguments supporting each of the grounds of the petition).
|
| 6. |
The question or issue for the determination by the Court is .......................... (state the question).
|
| 7. |
The relief sought by the petitioner is ..............................
DATED this ............... day of ................. 20 ................
Signed ..........................................
Petitioner ................................
............................................... Advocate for the petitioner
To:
The Supreme Court of Kenya
Copies to be served on .............................
.......................................................
Lodged in the Registry at .......................... on the .............. day of ...............
............................
Registrar
|
IN THE SUPREME COURT OF KENYA AT NAIROBI
Petition No. ...................... of 20 ...............
.............................................................. Petitioner
.......................................................... Respondent
In response to the petition, the respondents state that ................................ (state the facts and grounds on which the respondents rely).
Wherefore your respondents pray that it be determined that the said ................................. was duly elected and the election was valid or invalid.
Dated .............................. 20 ............ (Signed) A.
Dated ............................. 20 ............ (Signed) B
IN THE SUPREME COURT OF KENYA AT NAIROBI
Petition No. ...................... of 20 ...............
.............................................................. Petitioner
.......................................................... Respondent
NOTICE OF INTENTION NOT TO OPPOSE THE PETITION
TAKE NOTICE that the respondent in this petition intends not to oppose the petition.
Dated this ................... day of ................ 20 .................
Signed ........................ Respondent ...........................
Advocate for the respondent
To:
The Registrar/Deputy registrar of the Supreme Court of Kenya
Copies to be served on .............................. lodged in the registry/sub-registry at .................... of ......................., 20 .............
............................
Registrar
IN THE SUPREME COURT OF KENYA AT NAIROBI
Petition No. ...................... of 20 ...............
.............................................................. Petitioner
.......................................................... Respondent
NOTICE BY REGISTRAR OF PRE-TRIAL CONFERENCE
TAKE NOTICE that the date of the pre-trial conference has been fixed on this ................. day of ..................... 20 ..............
Signed
............................
Registrar
IN THE SUPREME COURT OF KENYA AT NAIROBI
Petition No. ...................... of 20 ...............
.............................................................. Petitioner
.......................................................... Respondent
TAKE NOTICE that on ..................... the ............... day of ....................., 20 .........., at ..................... o'clock in the morning/afternoon or as soon thereafter as he can be heard, ............................................., Advocate for the above-named applicant, will move the Court for an order that ............................................
on the grounds that .........................................................
And for an order that the costs of and incidental to this application abide the result of the said appeal ................................................
The application will be supported by the affidavit of ................................ sworn on the ............................ day of ..................., 20............ The address for service of the applicant is ............................................
Dated this .............................. day of .............., 20 ...........
Signed .................................. Applicant ...........................
Advocate for the applicant
Lodged in the Registry on the ................. day of ................., 20 .............
................................
Registrar
THIRD SCHEDULE
|
Item
|
KSh.
|
|
Upon lodging a petition
|
500,000
|
|
Security for costs
|
1,000,000
|
|
On filing a response to the petition
|
20,000
|
|
Upon lodging a notice of motion, including under certificate of urgency
|
30,000
|
|
Upon lodging an affidavit other than an affidavit annexed to a petition
|
6,000
|
|
Filing a notice of intention not to oppose the petition
|
4,000
|
|
Filing annexures (per folio)
|
200
|
|
Filing written submissions (per folio)
|
200
|
THE SUPREME COURT RULES, 2020
Revoked by Legal Notice 101 of 2020 on 12th June, 2020
Revoked by L.N. 101/2020, r. 67.
THE SUPREME COURT RULES, 2020
Revoked by Legal Notice 101 of 2020 on 12th June, 2020
THE SUPREME COURT RULES, 2020
ARRANGEMENT OF RULES
PART II – ADMINISTRATION OF THE COURT
| 4. |
Duties of the President
|
| 9. |
Sealing of Court documents
|
| 11. |
Maintenance of the register
|
PART III – CASE MANAGEMENT
| 14. |
Hours of filing documents
|
| 15. |
Computation and extension of time
|
| 16. |
Service and transmission of documents
|
| 18. |
Representation in Court
|
| 19. |
Participation of friends of the Court
|
| 20. |
Assignment of advocate by court
|
| 22. |
Scheduling conference
|
| 23. |
List and bundle of authorities
|
PART IV – CONDUCT OF PROCEEDINGS
| 26. |
Admission of additional evidence
|
| 27. |
Withdrawal of proceedings
|
PART V – APPLICATIONS
| 31. |
Interlocutory applications
|
| 33. |
Application for certification
|
| 34. |
Non-attendance at hearing of application
|
| 35. |
Abatement of applications
|
PART VI – APPEALS
| 37. |
Service of Notice of Appeal
|
| 38. |
Institution of appeal
|
| 39. |
Form of Petition of an appeal
|
| 40. |
Content of a record of Appeals from the Court of Appeal
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| 41. |
Content of a record of Appeal from other courts or tribunals
|
| 42. |
Response to petition of appeal
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| 44. |
Death of respondent before service of notice
|
| 46. |
Default in instituting appeal
|
| 47. |
Notice of cross-appeal
|
| 48. |
Notice of grounds for affirming decision and service
|
| 49. |
Withdrawal of notice of cross-appeal, or notice of grounds for affirming decision
|
PART VII – ADVISORY OPINIONS
| 50. |
Reference for an advisory opinion
|
| 51. |
Participants in a reference
|
| 53. |
Determining a reference
|
PART VIII – PETITION ON DECLARATION OF STATE OF EMERGENCY
| 55. |
Service and hearing of petition
|
PART IX – CONTEMPT OF COURT
| 56. |
Contempt in the face of the Court
|
| 57. |
Cognizance of contempt in other cases
|
PART X – FEES AND COSTS
| 59. |
Assessment of Fees payable
|
| 61. |
Costs improperly incurred
|
| 62. |
Reference on taxation
|
PART XI – GENERAL PROVISIONS
| 65. |
Effect of non-compliance with Rules
|
| 67. |
Revocation of L.N. 6 of 2020 and saving provision
|
SCHEDULES
THE SUPREME COURT RULES, 2020
| 1. |
Citation
These Rules may be cited as the Supreme Court Rules, 2020.
|
| 2. |
Interpretation
In these Rules, unless the context otherwise requires—
"Act" means the Supreme Court Act;
"Appeal" includes an intended appeal from the Court of Appeal or any other court or tribunal exercising original jurisdiction;
"bench" means a judge or any number of judges as may be constituted by the President of the Court in connection with any proceeding;
"Court" has the meaning assigned to it under section 2 of the Act;
"duty judge" means a judge of the Court assigned to conduct preliminary procedures during their time on duty;
"electronic media" means any type of device that stores and allows distribution or use of electronic information;
"guardian in the matter" means a person appointed as such, to defend a minor, or a person with a disability, in a matter;
"interested party" means a person who has an identifiable stake or legal interest or duty in the proceedings, who may be prejudiced if not joined, but is not an original party to the proceedings;
"party" includes a petitioner, respondent, interested party or an applicant;
"Petition" has the meaning assigned to it under the Act;
"preliminary procedures" means presentation made before a single judge, a two-judge bench, or the Registrar, on a matter preparatory in nature;
"President" means the President of the Supreme Court;
"proceedings" means presentation made before the Court under Article 163(2) of the Constitution, for final determination on a matter;
"reference" means an application to the Court for an Advisory Opinion;
"Registrar" has the meaning assigned to it under section 2 of the Act; and
"Registry" has the meaning assigned to it under section 2 of the Act.
|
| 3. |
Scope and objectives
| (1) |
These Rules apply to proceedings under the Court’s jurisdiction and includes petitions, references and applications.
|
| (2) |
The overriding objective of these Rules is to ensure that the Court is accessible, fair and efficient.
|
| (3) |
The Court may use appropriate technology in its proceedings and operations.
|
| (4) |
The Court shall interpret and apply these Rules without undue regard to technicalities and procedure.
|
| (5) |
Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders or give directions as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
|
|
PART II – ADMINISTRATION OF THE COURT
| 4. |
Duties of the President
| (1) |
The duties of the President shall include—
| (a) |
coordination of the activities of the Court;
|
| (b) |
constitution of a bench to hear and determine any matter filed before the Court;
|
| (c) |
determination of the sittings of the Court and the matters to be disposed of at such sittings; and
|
| (d) |
determination of the period of vacation of the Court.
|
|
|
| 5. |
Duty Judge
The President shall appoint a duty judge who shall —
| (a) |
hear and determine applications for certification of urgent matters; and
|
| (b) |
any other matter as may be provided for under the Act.
|
|
| 6. |
Role of the Registrar
| (1) |
The role of the Registrar is —
| (a) |
to schedule matters filed before the Court for a scheduling conference;
|
| (b) |
to decline pleadings that are not in accordance with the Constitution, the Act, these Rules, or the Court's practice directions for filings;
|
| (c) |
to impose sanctions or order costs against a party who fails to comply with directions of the Court;
|
| (d) |
to fix matters for hearing in consultation with the President; and
|
| (e) |
to give notice of any directions in any matter approved by the Court.
|
|
| (2) |
Any party aggrieved by a decision of the Registrar made under this rule may apply for a review to a single judge.
|
| (3) |
A determination by the single judge on the decision of the Registrar shall be final.
|
|
| 7. |
Sittings of the court
| (1) |
The Court shall have three sittings in a year.
|
| (2) |
The sittings of the Court referred to under sub rule (1) shall be as follows—
| (a) |
from the 14th January to the second Wednesday before Good Friday;
|
| (b) |
from the first Wednesday after Easter Week to the 31st July; and
|
| (c) |
from the 16th September to the 20th December.
|
|
|
| 8. |
Language of the Court
| (1) |
The language of the Court is English.
|
| (2) |
A party who intends to address the Court in any language other than the language of the Court shall give the Registrar a seven-day notice before the date of the hearing.
|
|
| 9. |
Sealing of Court documents
The Registrar shall sign and seal with the seal of the Court any summons, warrant, order, notice or other formal document issued by the Court.
|
| 10. |
Registry
| (1) |
The Registry shall be located at Nairobi.
|
| (2) |
The President may from time to time establish sub-registries of the Court.
|
| (3) |
The working hours of the Registry are from 8.30 a.m. to 5.00 p.m.
|
|
| 11. |
Maintenance of the register
| (1) |
The Registrar shall maintain a register of all documents lodged in the registry.
|
| (2) |
A register shall contain particulars of documents including—
| (a) |
the sequencing of the application;
|
| (b) |
(in the case of an appeal), the file number of the proceedings in the lower court;
|
| (c) |
the names of the parties; and
|
| (d) |
the date when any action is required to be taken.
|
|
|
PART III – CASE MANAGEMENT
| 12. |
Filing of documents
| (1) |
Pleadings and any other document filed in the Court shall be in both printed and electronic form.
|
| (2) |
A party filing any document shall ensure consistency in the printed and the electronic formats.
|
| (3) |
In case of any inconsistency between the hard copy and soft copy, the hard copy shall prevail.
|
| (4) |
Where a document is lodged in a sub-registry, the deputy registrar receiving the same shall transmit it to the Registry.
|
|
| 13. |
Form of documents
| (1) |
A document prepared for use in Court shall conform to practice directions issued by the President.
|
| (2) |
The pages of every document in an application or appeal shall—
| (a) |
be numbered consecutively; and
|
| (b) |
have every tenth line of each page indicated on the margin of the right side of the sheet.
|
|
| (3) |
The documents lodged to institute an appeal shall be bound in book form, in volumes secured under cover of durable paper, with proper title appearing on the cover.
|
| (4) |
The Court may limit the number of pages of any set of documents to be filed.
|
| (5) |
Despite this rule, the Court may, where necessary, vary the requirements relating to filing of documents.
|
|
| 14. |
Hours of filing documents
| (1) |
Parties shall file or present documents in the registry during working hours.
|
| (2) |
Despite sub-rule (1), the President may specify other times when parties may file or present documents in the registry.
|
|
| 15. |
Computation and extension of time
| (1) |
The computation of time for any action under these Rules shall be in accordance with—
| (a) |
any timeline provided for under the Constitution;
|
| (b) |
section 57 of the Interpretations and General Provisions Act (Cap. 2);
|
| (c) |
any directions of the Court.
|
|
| (2) |
The Court may extend the time limited by these Rules or by any decision of the Court.
|
|
| 16. |
Service and transmission of documents
| (1) |
Where a document is required to be served upon a person under these Rules, service may be effected—
| (b) |
through a licensed courier service-provider approved by the Court;
|
| (c) |
by electronic means in accordance with the practice directions;
|
| (e) |
on a person entitled to appear on that person's behalf; or
|
| (f) |
in such other manner as the Registrar may direct.
|
|
| (2) |
The attestation of service shall be by way of an affidavit of service, which shall specify the details of the person served, and the place, date, time and mode of service.
|
| (3) |
Despite sub-rule (2), the Court may admit oral evidence of service.
|
|
| 17. |
Further pleadings
| (1) |
A party may only file further pleadings or affidavits with the leave of the Court, and with the consent of the other party.
|
| (2) |
An application for leave under this rule may be made orally.
|
| (3) |
Any pleadings, affidavits or other documents filed under this rule shall be served in accordance with these Rules.
|
|
| 18. |
Representation in Court
| (1) |
A party may in any proceedings—
| (b) |
be represented by an advocate; or
|
| (c) |
with the leave of the Court, be assisted by any other person chosen by the party.
|
|
| (2) |
An association, a corporate body or group of persons may be represented in a proceeding by an advocate, a director, manager or secretary appointed in writing, in accordance with a duly-made resolution, which shall be filed in Court.
|
| (3) |
Where a child or a person with disability is involved, the Court may appoint a guardian in the matter, or a next friend, for the purpose of lodging an appeal or a petition, and the Court may, at any time and for sufficient reason, remove or substitute the appointed guardian or next friend.
|
| (4) |
A party may remove or substitute a representative at any stage of the proceedings.
|
| (5) |
A party seeking to remove, substitute, nominate or otherwise change a representative, shall lodge with the Registrar a notice of change, and serve the notice upon other parties to the proceedings.
|
| (6) |
An advocate may at any stage in the proceedings apply to the Court to cease acting for a party.
|
| (7) |
An advocate who applies to cease acting, shall serve the application upon the other party or parties involved.
|
|
| 19. |
Participation of friends of the Court
| (1) |
The Court may on its own motion, or at the request of any party, permit a person with particular expertise to appear in any matter as a friend of the Court.
|
| (2) |
The Court shall before admitting a person as a friend of the court, consider—
| (a) |
proven expertise of the person;
|
| (b) |
independence and impartiality of the person; or
|
|
| (3) |
Any fees or expenses incurred by a person appointed by the Court as a friend of the court on its own motion, shall be paid out of the Judiciary Fund, in accordance with a scale determined by the President.
|
| (4) |
An application to be admitted as an amicus or a friend of the Court shall be done within 7 days upon filing of a response in any proceedings before the Court.
|
|
| 20. |
Assignment of advocate by court
| (1) |
The President may, in the interest of justice, assign an advocate to represent a party.
|
| (2) |
The fees and expenses of an advocate assigned, by virtue of sub-rule (1), may be paid out of the Judiciary Fund, on a scale determined by the President.
|
|
| 21. |
Test case
The Court may, upon application by any party or on its own motion, where satisfied that the issues involved in any two or more proceedings are similar, order that the proceedings be—
| (a) |
consolidated, on such terms as the Court may determine; or
|
| (b) |
determined as a test case, and there be a stay in all steps in the other matters until the test suit is determined, or shall have failed to be determined or to be a real trial of the issues.
|
|
| 22. |
Scheduling conference
| (1) |
A party shall, within seven days after the close of pleadings, fill in and submit to the Registrar a scheduling questionnaire set out in Form A of the First Schedule.
|
| (2) |
The Registrar shall, within three days of receiving the filled-in questionnaire, convene a scheduling conference to—
| (a) |
ascertain the contested and the agreed issues;
|
| (b) |
resolve the question whether the parties can reach a settlement out of Court;
|
| (c) |
confirm the form of evidence to be adduced by the parties, and the number of witnesses parties will call;
|
| (d) |
receive proposals and give directions on the—
| (i) |
proposed time-frame for oral submissions; and |
| (ii) |
filing of written submissions, lists and bundles of authorities, by parties; |
|
| (e) |
confirm whether the parties' pleadings conform with these Rules and with the practice directions; and
|
| (f) |
(where the question of the jurisdiction of the Court is raised by a party), refer the matter to the President for determination.
|
|
| (3) |
The Presiding Judge shall, within seven days after the Registrar certifies that the parties have complied with the directions made at the scheduling conference, convene a pre-trial conference, to determine preliminary matters including —
| (a) |
whether to allow any friend of the Court, or interested party in the proceedings; and
|
| (b) |
any other matter requiring determination such as may have been raised at the scheduling conference.
|
|
|
| 23. |
List and bundle of authorities
| (1) |
A party shall file and serve any list of authorities in respect of which reliance is sought before scheduling conference before the Registrar.
|
| (2) |
The list of authorities shall contain summarized analysis of each of the listed authorities, specifying the rule of law bearing upon the decision, its relevance, and its applicability to the matter before Court.
|
| (3) |
A party may file written submissions in addition to, or in place of, oral submissions.
|
| (4) |
A judgment and ruling of the Court shall not be annexed as part of the bundle of authorities.
|
|
| 24. |
Interested parties
| (1) |
A person may, within seven days of filing a response in any proceedings, apply for leave to be joined as an interested party.
|
| (2) |
An application under sub-rule (1) shall include—
| (a) |
a description of the interested party;
|
| (b) |
a depiction of such prejudice as the interested party would suffer if the intervention was denied; and
|
| (c) |
the grounds or submissions to be advanced by the interested party, their relevance to the proceedings, and their departures from the standpoint of the parties.
|
|
| (3) |
An application under this rule shall be determined on the basis of written submissions.
|
|
PART IV – CONDUCT OF PROCEEDINGS
| 25. |
Hearing in Court
| (1) |
The Registrar shall, unless the Court certifies the matter as urgent, give parties to the proceedings a notice of not less than fourteen days, ahead of hearing date.
|
| (2) |
Proceedings maybe conducted in open court or in chambers, as the Court may direct.
|
| (3) |
The Registrar shall only certify for a hearing a matter that has complied with the Act and these Rules.
|
| (4) |
The Court may prescribe the time allowed for making oral presentations, address by the parties, their advocates or other recognized representatives.
|
|
| 26. |
Admission of additional evidence
| (1) |
The Court may call or admit additional evidence in any proceedings.
|
| (2) |
A party seeking to adduce additional evidence shall make a formal application to the Court.
|
| (3) |
In any appeal from a decision of the Court of Appeal, or from a court or tribunal exercising original jurisdiction, the Court may—
| (a) |
call for or receive any record on any matter connected with the proceedings;
|
| (b) |
re-appraise evidence and draw any inferences of fact;
|
| (c) |
take additional evidence; or
|
| (d) |
direct the trial court or the Registrar to take additional evidence.
|
|
| (4) |
Where the Court takes additional evidence either orally or by affidavit, the Court may allow any witness to be cross-examined.
|
| (5) |
Where the Court directs the trial court to take additional evidence, the trial court shall certify such evidence to the Court, with a statement of its opinion on the credibility of any witness adducing such evidence.
|
| (6) |
Where evidence is taken by the Registrar, the Registrar shall give statements of opinion on the credibility of the witness.
|
| (7) |
A party to an appeal is entitled to be present when additional evidence is being taken.
|
|
| 27. |
Withdrawal of proceedings
| (1) |
A party may, with the leave of the Court, withdraw the proceedings at any time before the delivery of judgment.
|
| (2) |
The Court may make an order as to costs, following such withdrawal of proceedings.
|
|
| 28. |
Judgment
| (1) |
The Court shall deliver a ruling, judgment or advisory opinion within ninety days from the last day of hearing.
|
| (2) |
The Court may issue its decision, while reserving the reasons for such decision to a later date.
|
| (3) |
Where the Court reserves the reasons for a decision, any judge of the Court may deliver the reasons on a determined date.
|
| (4) |
An Advisory Opinion shall be delivered in open court, and issued in writing.
|
| (5) |
The Court may review any of its decisions in any circumstance which the Court considers meritorious, exceptional, and in the public interest, either on the Court’s own motion, or upon application by a party.
|
| (6) |
Pursuant to section 21(4) of the Act, a party may apply for formal correction of a judgment, ruling or order, through a Form B set out in the First Schedule.
|
|
| 29. |
Decrees and orders
| (1) |
Except for an Advisory Opinion, a decision of the Court on any proceedings shall be in form of a decree or an order, as may be appropriate.
|
| (2) |
A decree of the Court shall be as set out in Form C of the First Schedule.
|
| (3) |
An Order of the Court shall be as set out in Form D of the First Schedule.
|
| (4) |
Any party may, within fourteen days from the date of judgment or ruling, prepare a draft order and submit it for the approval of the other party and who shall, within seven days of receiving the draft order—
| (a) |
approve it, with or without any changes; or
|
|
| (5) |
Where the parties approve the draft, it shall be submitted to the Registrar who shall, if satisfied that it is properly drawn, certify the Order accordingly.
|
| (6) |
Where parties do not agree on the content of the Order, any judge who sat at the hearing shall settle the terms of the Order.
|
|
| 30. |
Execution
| (1) |
The Registrar shall certify every decision of the Court for transmission to the High Court for execution.
|
| (2) |
An order or a decree of the Court may be enforced as if it were an order of the High Court.
|
|
PART V – APPLICATIONS
| 31. |
Interlocutory applications
| (1) |
Every interlocutory application to the Court shall be filed together with written submissions and shall be determined by way of written submissions.
|
| (2) |
An interlocutory application shall not be originated before a petition of appeal or a reference is filed with the Court.
|
| (3) |
An interlocutory application together with written submissions shall be served within seven days of filing.
|
| (4) |
A response to the interlocutory application together with written submissions shall be filed and served within seven days.
|
| (5) |
The applicant, upon service of the response, shall file a rejoinder which may include supplementary submissions within seven days.
|
| (6) |
An interlocutory application shall be by way of a Notice of Motion.
|
|
| 32. |
Urgent applications
| (1) |
A party seeking to have an application heard on a priority basis shall file the application—
| (a) |
accompanied by a certificate of urgency; and
|
| (b) |
supported by an affidavit attesting to the urgency.
|
|
| (2) |
An application shall be placed before the duty judge who may grant or decline to certify the matter as urgent.
|
|
| 33. |
Application for certification
| (1) |
An application for certification shall, in the first instance, be made in the court from which the appeal originates.
|
| (2) |
Where the Court of Appeal has certified or has declined to certify a matter as one of general public importance, an aggrieved party may apply to the Court for review, within fourteen days.
|
| (3) |
An application under this rule shall be by way of originating motion as set out in Form E of the First Schedule.
|
| (4) |
Upon filing an application under this rule—
| (a) |
the applicant shall serve the application within seven days;
|
| (b) |
all responses shall be filed and served within fourteen days of service; and
|
| (c) |
upon service of a response, the applicant shall file and serve any rejoinder within seven days.
|
|
| (5) |
An application for certification shall—
| (a) |
only be limited to the parties in the original cause; and
|
| (b) |
be determined on the basis of written submissions.
|
|
|
| 34. |
Non-attendance at hearing of application
| (1) |
If, on the date fixed for the hearing of an application—
| (a) |
neither party attends the hearing, the application may be dismissed; or
|
| (b) |
where either the applicant or the respondent does not attend court, the Court may proceed as it deems fit.
|
|
| (2) |
A party who, for a sufficient cause, did not attend court and is aggrieved by the decision of the Court under sub-rule (1), may apply to the Court to have the application heard afresh.
|
| (3) |
The Court, in the case of sub-rule (2), shall consider a request for a fresh determination, and may set aside or vary the decision made:
Provided that the party shall demonstrate sufficient cause for non-attendance.
|
| (4) |
Where, in a criminal matter, the applicant does not attend court by reason of being in custody, but is represented by an advocate, the application shall be heard in the absence of the applicant:
Provided that the Court may direct that the applicant shall be presented in court for the hearing.
|
|
| 35. |
Abatement of applications
| (1) |
An application in a criminal appeal shall abate where the applicant is the State, on the death of the respondent, and in any other case, on the death of the applicant.
|
| (2) |
An application in a civil appeal shall not abate on the death of any party, but the Court may, on the application of an interested person, cause the legal representative of the deceased to be made a party in place of the deceased.
|
| (3) |
If no application is made within twelve months from the date of death, the application shall abate.
|
| (4) |
A legal representative of a deceased party or any other interested person may apply for an order to revive an application which has abated.
|
| (5) |
The Court shall, if it is proved that an applicant was prevented by sufficient cause from continuing with the application, revive the application on such terms as to costs, or otherwise, as the Court may deem fit.
|
|
PART VI – APPEALS
| 36. |
Notice of Appeal
| (1) |
A person who intends to make an appeal to the Court shall file a notice of appeal within fourteen days from the date of judgment or ruling which is the subject of appeal.
|
| (2) |
The notice of appeal shall be—
| (a) |
in Form F set out in the First Schedule;
|
| (b) |
filed at the first instance with the Registrar of the court, or with the tribunal from which an appeal originates.
|
|
| (3) |
Upon filing of the notice of appeal, the petitioner shall transmit a copy of the notice to the Registrar.
|
| (4) |
In lodging an appeal on a matter of general public importance, it shall not be mandatory to obtain such certification before filing the notice of appeal.
|
|
| 37. |
Service of Notice of Appeal
| (1) |
A petitioner shall, within seven days of lodging a notice of appeal, serve transmitted copies of the notice upon all persons directly affected by the appeal.
|
| (2) |
A person upon whom a notice of appeal is served shall—
| (a) |
within fourteen days of receiving the notice, file in the registry a notice of address for service, which shall contain that person’s contact detail, including telephone numbers and email address, and shall serve the intended appellant with copies of the notice; and
|
| (b) |
within a further fourteen days, shall serve a copy of the notice of address for service on every other person named in the notice of appeal.
|
|
| (3) |
Where a party cannot serve a petition or a response to a petition, or cannot make any other service under these Rules, the party may apply in writing to the Court for an order of substituted service.
|
|
| 38. |
Institution of appeal
| (1) |
An appeal to the Court shall be filed within—
| (a) |
thirty days of the date of filing the notice of appeal, where the appeal is as of right; or
|
| (b) |
thirty days after the grant of certification, where such certification is required.
|
|
| (2) |
The requirement for instituting an appeal include—
|
|
| 39. |
Form of Petition of an appeal
| (1) |
A petition of appeal shall be as set out in Form G of the First Schedule.
|
| (2) |
The petition shall contain—
| (a) |
a concise statement of the facts relied upon;
|
| (b) |
a summary of the grounds for the petition;
|
| (c) |
a concise presentation of arguments supporting each of the grounds of the petition;
|
| (d) |
the relief sought in the petition and any directions sought pursuant to these Rules; and
|
| (e) |
a schedule listing all the documents annexed to the petition.
|
|
|
| 40. |
Content of a record of Appeals from the Court of Appeal
| (1) |
For the purpose of instituting an appeal from a Court of Appeal decision, the record of appeal shall entail—
| (a) |
a certificate, if any, certifying the matter as of general public importance;
|
| (b) |
the judgment or ruling of the Court of Appeal being appealed from;
|
| (c) |
a judgment or ruling of the High Court or a court of equal status; and
|
| (d) |
the relevant pleadings required to determine the appeal.
|
|
| (2) |
A ruling under sub rule (1)(b) is relevant only if it relates to the determination of a substantive matter, and shall not include a ruling on an application of less gravity.
|
| (3) |
The court may, on the application of any party, direct certain documents to be excluded from the record, and an application for such exclusion may be made orally.
|
| (4) |
Where a document is omitted from the record of appeal under this rule, the appellant may within fifteen days of lodging the record of appeal, without leave, include the document in a supplementary record of appeal.
|
|
| 41. |
Content of a record of Appeal from other courts or tribunals
| (1) |
The record of appeal from a court or tribunal exercising original jurisdiction shall contain—
| (a) |
an index of the documents in the record, with a numbering of the pages on which they appear;
|
| (c) |
the certificate, if any, certifying the matter to be of general public importance;
|
| (d) |
a statement showing the address for service of the appellant, including telephone numbers and email address;
|
| (e) |
the address for service furnished by the respondent, and as regards any respondent who has not furnished an address for service, the address and proof of service upon the respondent in the notice of appeal;
|
| (g) |
the record of proceedings;
|
| (h) |
the trial judge's notes at the hearing;
|
| (i) |
the transcript of any shorthand notes taken at the trial;
|
| (j) |
the affidavits read, and all documents of evidence at the hearing, or, if such documents are not in the English language, certified translations thereof;
|
| (l) |
the certified decree or order; and
|
| (m) |
such other documents, if any, as may be necessary for the proper determination of the appeal, including any interlocutory proceedings which may be directly relevant.
|
|
|
| 42. |
Response to petition of appeal
| (1) |
Unless otherwise directed by the Court, a respondent shall file grounds of objection, an affidavit, or both, within fourteen days of service of the petition.
|
| (2) |
The petitioner shall file and serve a rejoinder within seven days of being served with the response.
|
| (3) |
Pleadings shall close seven days after the lapse of time for the filing of a rejoinder.
|
|
| 43. |
Abatement of appeals
| (1) |
An appeal in a criminal appeal shall abate where the appellant is the State, on the death of the respondent, and in any other case, on the death of the appellant.
|
| (2) |
An appeal in a civil appeal shall not abate on the death of any party, but the Court may, on the application of an interested person, cause the legal representative of the deceased to be made a party in place of the deceased.
|
| (3) |
If no application is made within twelve months from the date of death, the appeal shall abate.
|
| (4) |
A legal representative of a deceased party or any other interested person may apply for an order to revive an appeal which has abated.
|
| (5) |
The Court shall, if it is proved that an applicant was prevented by sufficient cause from continuing with the application, revive the appeal on such terms as to costs, or otherwise, as the Court may deem fit.
|
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| 44. |
Death of respondent before service of notice
A notice of appeal shall be served, as soon as practicable, upon the legal representative, where the person upon whom it was to be served is deceased.
|
| 45. |
Address for service
A person upon whom a notice of appeal is served shall, within fourteen days after service of the notice of appeal, lodge in the registry and serve on the appellant and every other person named in the notice—
| (a) |
an address for service; and
|
| (b) |
a notice of address for service, as set out in Form H of the First Schedule.
|
|
| 46. |
Default in instituting appeal
| (1) |
Where a party has lodged a notice of appeal, but fails to institute the appeal within the prescribed time, the notice of Appeal shall be deemed to have been withdrawn, and the Court may on its own motion, or on application by any party, make such orders as may be necessary.
|
| (2) |
The party in default shall be liable to pay the costs arising, to any person upon whom the notice of appeal was served.
|
|
| 47. |
Notice of cross-appeal
| (1) |
A respondent who intends to cross-appeal shall specify the grounds of contention, and the nature of the relief that the respondent seeks from the Court.
|
| (2) |
| (a) |
provide contact details including the names, postal address, telephone number and email address of any persons intended to be served with the notice; and
|
| (b) |
lodge eight copies of the memorandum of appeal and record of appeal in the registry within thirty days of service upon the respondent, or not less than thirty days before the hearing of the appeal, whichever is the later.
|
|
| (3) |
An application or notice to cross-appeal shall be as set out in Form I of the First Schedule.
|
| (4) |
In a criminal appeal, the Registrar of the court or tribunal from which an appeal originates shall prepare the record of appeal, and cause copies to be served upon the parties and to the Registrar.
|
|
| 48. |
Notice of grounds for affirming decision and service
| (1) |
A respondent who contends on an appeal that a decision of a court or tribunal should be affirmed on grounds other than, or additional to those relied upon by the court, shall give notice in the terms set out in Form J of the First Schedule, specifying the grounds of the contention.
|
| (2) |
A respondent intending to contend at the hearing of the appeal that part of the decision of the court should be varied or reversed, and another part be affirmed on grounds other than, or additional to those relied upon by that court, may include both such contentions in a notice of cross-appeal, and shall not be required to give further notice.
|
| (3) |
Sub-rules (1) and (2) shall apply, with necessary modifications, to an appellant who desires to contend in opposition to a cross-appeal, that the decision of a court or tribunal should be affirmed on grounds other than, or additional to those relied on by that court.
|
| (4) |
A notice under this rule shall be served upon other parties within seven days of filing.
|
|
| 49. |
Withdrawal of notice of cross-appeal, or notice of grounds for affirming decision
| (1) |
Where an appeal is withdrawn after notice of cross-appeal is given, the respondent who gave the notice may withdraw it within fourteen days of receiving the notice of withdrawal.
|
| (2) |
If an appeal is not so withdrawn, the cross-appeal shall proceed to hearing, and the provisions of these Rules shall apply as if the cross-appellant were an appellant and the appellant a respondent.
|
| (3) |
Where an appeal is withdrawn within fourteen days from the date when it was instituted, any respondent who has not lodged a notice of cross-appeal shall be entitled to give notice of appeal despite the expiry of time, except where the respondent gives the notice within fourteen days from the date when the appellant's notice of withdrawal was received.
|
|
PART VII – ADVISORY OPINIONS
| 50. |
Reference for an advisory opinion
| (1) |
The national government, state organ or a county government may make a reference to the Court for an advisory opinion under Article 163(6) of the Constitution.
|
| (2) |
The reference for an advisory opinion shall—
| (a) |
be in the form set out in Form K of the First Schedule;
|
| (b) |
be signed by a duly-authorised officer;
|
| (c) |
specify the questions or issues for determination by the Court; and
|
| (d) |
concisely and briefly state the question upon which advice is sought.
|
|
|
| 51. |
Participants in a reference
| (1) |
A person filing a reference may propose that the Court may consider admitting any other person to participate in the reference.
|
| (2) |
Despite sub-rule (1), the Court may on its own motion identify any other person to participate in the reference.
|
| (3) |
A person who has been admitted as a participant shall file and serve written submission within fourteen days of service of the reference.
|
| (4) |
The content of the written submissions of an admitted participant shall be in accordance with the directions of the Court.
|
| (5) |
Any application for joinder as interested party in a reference shall not be allowed.
|
| (6) |
Where a friend of the court or an expert has been admitted in any proceedings, the Court shall give directions on whether such person shall—
| (a) |
file written submissions; or
|
| (b) |
address the Court orally.
|
|
|
| 52. |
Notice of reference
Upon filing of a reference, the Registrar shall give—
| (a) |
notice to the applicant to appear before the Court for directions on the persons to be served with notice of such reference; and
|
| (b) |
notice of the reference to parties, if any, inviting them to attend the Court for directions regarding the date and mode of hearing.
|
|
| 53. |
Determining a reference
| (1) |
The court may, after giving the parties an opportunity to be heard, reject a reference in whole or in part, if—
| (a) |
it is incompetent within the meaning of Article 163(6) of the Constitution;
|
| (b) |
the applicant does not represent those who have interest in the opinion;
|
| (c) |
the matter in respect of which the reference is made can, in the opinion of the Court, be resolved by the advice of the Attorney-General, and such advice has not been sought;
|
| (d) |
it is satisfied that the application is frivolous, or otherwise an abuse of the process of the Court;
|
| (e) |
the applicant has failed to comply with any rule, direction or order of the Court; or
|
| (f) |
the reference is materially incomplete, or lacking in clarity, and the applicant has failed to remedy the defects as directed by the Court.
|
|
| (2) |
The Court shall, within sixty days of the close of hearing, deliver its opinion on the reference, and the Registrar shall publish the decision.
|
|
PART VIII – PETITION ON DECLARATION OF STATE OF EMERGENCY
| 54. |
Filing a petition
| (1) |
A petition maybe filed under Article 58 of the Constitution challenging—
| (a) |
the validity of a declaration of state of emergency;
|
| (b) |
the validity of an extension of a declaration of state of emergency; and
|
| (c) |
any legislation enacted, or any action taken, in consequence of a state of emergency.
|
|
| (2) |
The petition shall set out grounds upon which the declaration is challenged, accompanied by a supporting affidavit sworn by the petitioner.
|
| (3) |
The Court shall issue directions on how to proceed with the petition, including the manner of hearing.
|
|
| 55. |
Service and hearing of petition
| (1) |
A petition filed shall be served within—
| (a) |
three days, for a petition challenging the declaration being made;
|
| (b) |
seven days, for a petition challenging grant of extension of a declaration of the state of emergency; or
|
| (c) |
seven days, for any action, being taken or the publication in the Gazette of the legislation being challenged.
|
|
| (2) |
The respondent shall respond to the petition within three days of service, by filing and serving a replying affidavit or response.
|
| (3) |
The Court shall issue directions on how to proceed with the petition, including the manner of hearing.
|
|
PART IX – CONTEMPT OF COURT
| 56. |
Contempt in the face of the Court
| (1) |
The Court may cause any person whose conduct before it manifests disobedience, obstruction or contempt, to be detained in custody.
|
| (2) |
Within twenty-four hours of making an order under sub-rule (1), the Court shall—
| (a) |
cause the person to be informed in writing of the contempt of Court with which the person is charged; and
|
| (b) |
afford that person an opportunity to make a defence to the charge.
|
|
| (3) |
Upon taking such evidence as may be necessary or as may be offered by such person, the Court shall proceed to determine the charge and make necessary orders in accordance with the Act.
|
|
| 57. |
Cognizance of contempt in other cases
| (1) |
In a case of contempt referred to under section 28(4) of the Act, the Court may take action on its own motion or on an application made by any person.
|
| (2) |
Any application for contempt filed shall specify the acts of contempt of court the person is charged with.
|
| (3) |
The applicant shall serve the application for contempt on the respondent within three days of filing.
|
| (4) |
Where the Court initiates contempt proceedings on its own motion, the accused shall file a response within 14 days of being notified of the intention to commence such proceedings.
|
| (5) |
The Court shall determine the contempt matter within ninety days from the date of filing the response or where no response is filed, from the date the period of filing of response lapses.
|
|
| 58. |
Penalty for contempt
The Court may make such order as it may deem fit, in determining a matter of contempt, including issuing an order denying audience to the contemnor for a period not exceeding one year.
|
PART X – FEES AND COSTS
| 59. |
Assessment of Fees payable
| (1) |
Subject to Article 22 of the Constitution and section 11 of the Act, there shall be payable to the Court such fees as specified in the Second Schedule to these Rules.
|
| (2) |
Any costs payable by a party shall be—
| (a) |
assessed by the Court when making its decision; or
|
| (b) |
be taxed by the Registrar; or
|
| (c) |
determined by consent of the parties.
|
|
|
| 60. |
Taxation of costs
| (1) |
The Registrar has powers to tax costs arising out of any proceedings before the Court, between the parties.
|
| (2) |
The party-to-party costs shall be taxed in accordance with the scale set out in the Third Schedule to these Rules.
|
|
| 61. |
Costs improperly incurred
| (1) |
The Court may require an advocate, or a representative of a party upon whom costs have been incurred, to show cause why they should not personally bear such costs, where it appears to the Court that the costs were incurred—
| (a) |
improperly or without reasonable cause;
|
| (b) |
on account of any undue delay in the proceedings; or
|
| | |
