[2018] KESC 39 (KLR)

Gitonga & 3 others v Independent Electoral & Boundaries Commission & 17 others (Civil Application 41 of 2014) [2018] KESC 39 (KLR) (Civ) (8 May 2018) (Ruling)

Naomi Wangechi Gitonga & 3 others v Independent Electoral & Boundaries Commission & 17 others [2018] eKLR

Neutral citation: [2018] KESC 39 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Civil

Civil Application 41 of 2014

PM Mwilu, Ag.CJ & Ag. P, MK Ibrahim, JB Ojwang, SC Wanjala & NS Ndungu, SCJJ

May 8, 2018

Between

Naomi Wangechi Gitonga

1st Applicant

Hannah Warukira Kabui

2nd Applicant

Ann Nyambura Wang’ombe

3rd Applicant

Leah Mumbi Njoroge

4th Applicant

and

Independent Electoral & Boundaries Commission

1st Respondent

Rose Wairimu Kamau

2nd Respondent

Salome Wairimu Kago

3rd Respondent

Elizabeh Muthoni Wanjau

4th Respondent

Mary Muthoni Njeru

5th Respondent

The National Alliance Party

6th Respondent

Keziah Waruinu Mwangi

7th Respondent

Lucy Nyaguthii

8th Respondent

Jecinta Wambui Wamae

9th Respondent

Mary Wairimu Muraguri

10th Respondent

Kanyi King’ori

11th Respondent

Regina Wanjiru Macharia

12th Respondent

Josephine Muthoni Mureithi

13th Respondent

Elizabeth Wangui Njee

14th Respondent

Lucy Mugure Wanyitu

15th Respondent

Nancy Wanjiku Gachochio

16th Respondent

Salima Uledi

17th Respondent

Anastacia Wanjiru Njuka

18th Respondent

(Being an application for extension of time to file a notice of appeal against the Judgment and Orders of the Court of Appeal in Nairobi Civil Appeal No. 169 of 2013, Rose Wairimu Kamau & Others v. The IEBC (Maraga, Mwera and J. Mohammed JJ.A) dated 8th November, 2013 and for review of the decision of the Supreme Court contained in a Ruling dated 18th March, 2014. )

Ruling

[1].The main issue for determination in this appeal is whether this Court should grant an extension of time for the applicants to file a notice of appeal and a petition of appeal.

[2].It was the applicants’ submission that, they had satisfied the requirements laid down by this Court for an application for extension of time to be allowed, in Nicholas Kiptoo arap Korir Salat v. Independent Electoral and Boundaries Commission and 7 Others, Sup. Ct Application No. 16 of 2014.

[3].In response, all the respondents submitted that the applicants were guilty of inordinate delay, and had not provided sufficient reason for the delay in filing the notice of appeal. They submitted that the application for review had no merit, and the same should be dismissed.

[4].Further, the 1st respondent contended that the applicants were forum- shopping in the Chief Magistrate’s Court, the High Court, and this Court. The respondent argued that if the applicants were indeed aggrieved by the Supreme Court’s decision (dismissing their application for extension of time) delivered on 18th March, 2014, they ought to have sought a review of the same, instead of proceeding with the election petition at the Chief Magistrate’s Court in Nyeri and the Election Appeal Nos. 30 and 31 of 2014.

[5].Counsel for the 7th to 9th, and 13th to 18th respondents further argued that the applicants were guilty of inordinate delay in filing the application herein, since the Supreme Court Ruling which is sought to be reviewed, was delivered on 18th March, 2014, while this application was filed on 20th November, 2014.

[6].Looking at the record of appeal and the arguments presented before this Court, there are two aspects of delay that must be addressed: firstly, the initial delay in filing the notice of appeal; and secondly, the delay in filing this Application for review.

[7].Rule 31(1) of the Supreme Court Rules provides that a Notice of Appeal is to be filed within 14 days of the delivery of Judgment. It reads:A person who intends to appeal to the Court shall file a notice of appeal within fourteen days from the date of Judgment or Ruling, in Form B set out in the First Schedule, with the Registrar of the Court or with the tribunal it is desired to appeal from.”

[8].This position was aptly echoed by this Court in the decision of Nick Salat, where the Court held that:A Notice of Appeal is a primary document to be filed outright whether or not the subject matter under appeal is that which requires leave or not. It is a jurisdictional pre-requisite.”

[9].The applicants, therefore, had 14 days from the date of delivery of the Judgment of the Court of Appeal, to file a Notice of Appeal. Consequently, the applicants ought to have filed the Notice of Appeal on or before the 22nd of November, 2013 since the Court of Appeal Judgment was delivered on 8th November, 2013. This, they did not do. Instead, the applicants waited till the 13th February, 2014, that is 96 days after the delivery of the Court of Appeal Judgment, to move this Court by application under certificate of urgency, accompanied with a supporting affidavit as well as a Notice of Motion with an affidavit in support, seeking to extend time within which to file the Notice of Appeal. The applicants have sought to explain this delay on grounds that they did not know the appropriate forum in which to seek redress: an argument which, in our view, cannot excuse such inordinate delay. To allow an intending appellant who has inordinately delayed in moving the appeal process, to come to this Court and claim that he/she did not know whether to move the Court or not, would be setting a negative precedent. Suffice it to say that this Court’s decision in Nick Salat, is no authority for such a proposition.

[10].The second delay is with respect to the filing of this application for review. The impugned Ruling was delivered by Ibrahim and Ojwang SCJJ on 18th March, 2014. The applicants thereafter filed the application for review on 20th November, 2014. This is approximately 235 days after the delivery of the Ruling. No explanation was given for this delay.

[11].Instead, the applicants maintained that it is only to this Court they could turn, having been aggrieved by the Appellate Court’s Judgment. There is no doubt that this Court, for sustaining ends of justice, has an inherent jurisdiction to grant an application for the extension of time, to enable a party to pursue its cause. However, the Court will only exercise this discretion in favour of an applicant, where the latter presents a compelling case justifying the inordinate delay.

[12].It is to be noted that although these proceedings originated in the High Court as a constitutional petition, essentially, the cause was an electoral dispute, which ought to have been commenced by way of election petition before an election Court, entrusted with jurisdiction. This Court has clearly pronounced itself on the nature of disputes revolving around the nomination of candidates on the basis of political party lists, under Article 177 (1) (b) (c) and (2) of the Constitution, in Moses Mwicigi and Others v. The IEBC and Others, Petition No. 1 of 2015. Confronted with the question as to the procedure for challenging the nomination of County Assembly members by a political party, this Court stated thus:It is clear to us that the Constitution provides for two modes of ‘election’. The first is ‘election’ in the conventional sense, of universal suffrage; the second is ‘election’ by way of ‘nomination’, through the party list. It follows from such a conception of the electoral process, that any contest to an election, whatever its manifestation, is to be by way of an ‘election petition’.”

[13].Given the complex history of the proceedings leading to this application, it is necessary to reconsider the chronology of events, so as to place this dispute in perspective. Following the publication of a Gazette Notice designating the applicants herein as members of the Nyeri County Assembly (by the IEBC), the 2nd to 5th respondents herein filed Petition No. 236 of 2013, in the Constitutional and Human Rights Division of the High Court, against the Independent Electoral and Boundaries Commission (IEBC), challenging the nomination of the applicants. The petition was dismissed by the High Court, prompting the same parties to appeal to the Court of Appeal. The Court of Appeal directed that all parties whose interests were at stake be served with the record of appeal, and hearing notices (Paragraph 11 of the Court of Appeal Judgment).

[14].The Court invoked Rule 77 of the Court of Appeal Rules, and directed all the other gazetted TNA nominees, who stood to be affected by the Judgment, to be served with the record of appeal. All were served, though only five of them made submissions before the Court (including the 2nd and 3rd applicants herein).

[15].Pursuant to the directions issued by the Appellate Court, only two parties in the instant application (the 2nd applicant, Hannah Kabui, and the 3rd applicant, Anne Wangombe) entered appearance, and were allowed to make their submissions.

[16].On the 8th of November, 2013, the Court of Appeal delivered its Judgment allowing the appeal. Consequently, in compliance with the Orders of the Court, the IEBC in Gazette Notice No. 15096 issued on 29th November, 2013 and dated 25th November, 2013, published the TNA party list, in which it deleted the names of Naomi Wangechi Gitonga; Hannah Warukira Kabui; Ann Nyambura Wang’ombe; and Leah Njoroge (the applicants herein) as nominated members of the Nyeri County Assembly. The name of Salome Wairimu Kago, who was 2nd appellant at the Court of Appeal, was inserted in the list of nominees to the Nyeri County Assembly.

[17].Aggrieved by the actions taken by the IEBC, cancelling their initial nomination, the 1st to 4th applicants herein filed Election Petition No. 2 of 2013, dated 23rd December, 2013 at the Chief Magistrate’s Court in Nyeri, challenging the deletion of their names from the Gazette Notice. They sued IEBC together with the 2nd, 6th to 18th respondents herein. The 2nd, 4th and 5th respondents were not parties to the suit at the Chief Magistrate’s Court.

[18].On 13th February, 2014, the parties who had filed suit in the Chief Magistrate’s Court, filed a Notice of Motion under certificate of urgency before the Supreme Court, seeking extension of time to file a notice of appeal at the Court of Appeal. It is at this juncture that the 1st applicant (Naomi Wangechi Gitonga) joined the suit for the first time. They sued IEBC together with four others (Rose Wairimu Kamau; Salome Wairimu Kago; Elizabeth Muthoni Kamau and Mary Muthoni Njeru 2nd, 3rd, 4th and 5th respondents respectively).

[19].It is not in doubt that in deleting the applicants’ names from the nomination list, the IEBC was acting not on its own motion, but in compliance with the Court of Appeal’s Orders following the earlier suit filed in the Appellate Court by the respondents. Did the applicants really expect the Chief Magistrate’s Court to overturn the Orders of a superior court¾in this instance, the Court of Appeal? Even if the Magistrate’s Court were to err and purport to overturn the Orders of the Court of Appeal, would such decision stand on appeal to the High Court?

[20].In the circumstances, the most logical, nay, the only course of action open to the applicants, was to appeal the decision and consequential Orders of the Court of Appeal to this Court. This being an electoral dispute, the parties were bound by the imperative of time, as has been established by this Court in a number of election petition decisions, namely, Munya v. Githinji; Wambui v. King’ara; and Joho v. Shahbal. Indeed, had the applicants challenged the Court of Appeal’s decision within the established timelines, they could have succeeded, going by the ratio decidendi in Moses Mwicigi and Others v. the IEBC and Others, wherein this Court rendered itself thus:It is clear from the foregoing provisions that the allocation of nomination seats by the IEBC is a time bound process that starts with the proportional determination of the number of seats due to each political party. On that basis, IEBC then ‘designates’, or ‘draws from’ the allocated list the number of nominees required to join the County Assembly. To ‘designate’ or ‘draw from’ entails the act of selecting from the list provided by the political party. It is plain to us that the Constitution and the electoral law envisage the entire process of nomination for the special seats, including the act of gazettement of the nominees’ names by the IEBC as an integral part of the election process.”

[21].This Court is now confronted with the unwieldy situation where the applicants, having been aggrieved by the Court of Appeal’s decision, chose not to appeal against the decision within time, but instead filed an Election Petition at the Chief Magistrate’s Court. The matter is further compounded by the fact that some of the applicants herein were not parties to the proceedings at the Court of Appeal. The explanation given by the applicants, for their failure to act in good time in accordance with the Constitution and the electoral laws, is not one that can afford them relief. There was nothing to prevent the applicants from filing a notice of appeal against the decision of the Court of Appeal, even as they pondered their next course of action.

[22].Counsel for the applicants has also faulted the two-Judge Bench for failing to consider the pertinent issue of extension of time, and instead, addressing the question whether the intended appeal raises issues of constitutional interpretation and application. However, while we agree with the assertion that the two-Judge Bench should have addressed the application for extension of time, without digressing into a determination of the question whether the intended appeal had met the criteria set out in Article 163 (4) (a) of the Constitution, such action by the learned Judges, in our view, does not excuse the inordinate delay in filing this application by the applicants.

A. Dissenting Opinion Of Njoki S. Ndungu, Scj [23].The Majority have found that there was inexcusable delay in filing of the application and have consequently dismissed it. However, I am of a different opinion since it is important to take into account the legal principles propounded by this Court on extension of time, in Nick Salat. It is noteworthy that the Ruling of the two-Judge Bench was rendered on 18th March, 2014; while the Nick Salat Ruling came later, on 4th July, 2014. Nick Salat set out cogent principles on “extension of time applications” which may be considered to represent the current jurisprudential state of affairs. The Court had been categorical that, at the stage of ‘application for extension of time’, an applicant only needs to demonstrate a prima facie case that raises issues of constitutional interpretation or application. The Court went further to set out certain guiding principles, on the question of extension of time. Such a position is expressed in the Nick Salat case (page 31):This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the underlying principles that a Court should consider in exercise of such discretion:1. extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;2. a party who seeks…extension of time has the burden of laying a basis to the satisfaction of the Court;3. whether the Court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;4. [where] there is a reasonable [cause] for the delay, the delay should be explained to the satisfaction of the Court;5. whether there will be any prejudice suffered by the respondents if the extension is granted;6. whether the application has been brought without undue delay; and,7. whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

[24].It is apparent from the Ruling of 18th March, 2014 that after considering the question as to whether the intended appeal raised issues of constitutional interpretation and application, the two-Judge Bench, had not considered the pertinent issue of extension of time. The question as to whether the applicants had demonstrated cause for the delay in filing the notice of appeal, to the satisfaction of the Court, merited consideration.

[25].It is a relevant question, therefore, whether the application for extension of time met the criteria set in Nick Salat. One of the requirements is that the applicant should furnish the Court with sufficient reasons for the delay. Mr. Mungai, learned counsel for the applicants, submitted that the reason for the delay was that the applicants were not party to the proceedings at the Court of Appeal; and so, after the Appellate Court delivered its Judgment on 8th November, 2013, the applicants waited for the National Alliance Party (TNA) to come up with a list of nominees of Member of County Assembly Representatives, for gazettement by the Independent Electoral and Boundaries Commission (IEBC).

[26].Mr. Mungai urged that when the list was finally gazetted on 29th November, 2013 the applicants realized that their names were missing, and they sought to remedy the situation. Counsel further urged that the applicants were unclear as to the proper avenue to redress the substantial injustice they had suffered. He submitted that it was not clear whether the proper forum was the Magistrate’s Court in which case the applicants would file an election petition, or the Supreme Court, in which case they would file an appeal. In the meantime, counsel urged, the prescribed time for filing a notice of appeal had already lapsed.

[27].I am of the view that the time-gap between the date of delivery of Judgment of the Court of Appeal (8th November, 2013), and the date of its implementation by the IEBC, which was the date of the gazettement of the nomination list (29th November, 2013) is sufficient reason for the delay. This is because the prescribed period (14 days) for filing a notice of appeal had already lapsed. Further, I believe that the lack of clarify on the part of the applicants as to the proper forum to seek recourse for the grievances they had against the Court of Appeal decision is reason enough for the delay. This is especially because it appears (but it is yet to be confirmed when the matter is heard on its merits) that they were indirect parties in the matter before the Court of Appeal.

[28].The prejudice likely to be occasioned is another factor that should be taken into account before an application for extension of time is allowed. In the present matter it is evident that the respondents, with the exception of the IEBC, are sitting Members of the County Assembly of Nyeri; and thus, if the application is allowed, no prejudice will be occasioned on them. Conversely, the applicants will suffer prejudice if extension of time is denied.

[29].I am, therefore, convinced that the development of law on extension of time, by the Nick Salat Ruling, provides a basis for reviewing the decision of the two-Jude Bench, and for extending time for filing a notice of appeal. I would have therefore allowed this application.

B. Orders [30].For these reasons, and given the fact that the cause before us is, in essence, an election dispute, which ought to have been resolved in a timely manner in accordance with the Constitution, we make the following Orders:i.The Application dated 14th November, 2014 is hereby dismissed.ii.Each Party shall bear own costs.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF MAY, 2018. .................................. ……………..……………………..……….P. M. MWILU M. K. IBRAHIMDEPUTY CHIEF JUSTICE & JUSTICE OF THE SUPREME COURTVICE-PRESIDENT OF THE SUPREME COURT………………………….……..…………….. …………………...…………………………J. B. OJWANG S. C. WANJALAJUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT.………….…….…………..…………………S. N. NDUNGUJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA