[2018] KESC 12 (KLR)

Kimani & 20 others v Attorney General & 2 others (Application 17 of 2017) [2018] KESC 12 (KLR) (20 November 2018) (Ruling)

Paul Mungai Kimani & 20 others v Attorney General & 2 others [2018] eKLR

Neutral citation: [2018] KESC 12 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Application 17 of 2017

DK Maraga, CJ, MK Ibrahim, JB Ojwang, SC Wanjala & I Lenaola, SCJJ

November 20, 2018

Between

Paul Mungai Kimani

1st Applicant

Geoffrey Muchiri Gachanja

2nd Applicant

Samuel Gakobo Mbatia

3rd Applicant

Monica Waithera Macharia

4th Applicant

Ben Hada Kimani

5th Applicant

Grace Njeri

6th Applicant

Geoffrey Michuki Theuri

7th Applicant

John Waruburi Njoroge

8th Applicant

Evan Mwangi

9th Applicant

Kimani Karanja

10th Applicant

Henry Kimani

11th Applicant

Irungu Mwangi

12th Applicant

Phylis Njambi Kanyoro

13th Applicant

Macharia Mbuthia

14th Applicant

Serah Wanjiru

15th Applicant

Raphael Ngugi

16th Applicant

Mary Wambui Njenga

17th Applicant

Agnes Wanjiru

18th Applicant

Nelson Ndung’U Mundia

19th Applicant

Joseph Maina Thuita

20th Applicant

John Gikuru (On Behalf of Themselves and Members of Korogocho Owners Welfare Association)

21st Applicant

and

The Attorney General

1st Respondent

Provincial Commissioner Nairobi Area

2nd Respondent

The Commissioner of Lands

3rd Respondent

(Being an application for extension of time to file an appeal against the judgment and order of the Court of Appeal sitting in Nairobi (Koome, Azangalala & Kantai, JJA) delivered on 23rd September, 2016 in Nairobi Civil Appeal No. 173 of 2013)

Ruling

1. Upon perusing the Notice of Motion application dated and filed on 17th August, 2017 for extension of time to file an appeal out of time against the judgment and order of the Court of Appeal in Nairobi Civil Appeal No. 173 of 2013 and brought under the provisions of Rules 21 and 53 of the Supreme Court Rules, 2012; and

2. Upon reading the Applicants’ affidavit sworn by Irungu Mwangi, the 12th Applicant herein on 16th August, 2017; and

3. Upon considering the undated written submissions filed by the Applicants on 17th August, 2017 wherein they contend that the delay in filing the appeal was occasioned by inability or otherwise of the Court of Appeal in supplying them with certified copies of typed proceedings and judgment delivered on 23rd September, 2016 despite having applied for the same on 28th September, 2016 and the same received on 17th July, 2017; and

4. Upon reading the Respondents’ written submissions dated 18th September, 2017 and filed on 19th September, 2017 wherein they contend that the Applicants have not demonstrated to this Court what efforts they undertook to obtain the said certified copies of typed proceedings and judgment and that they were therefore not indolent; and

5. And having considered the Application, by a unanimous decision of this Bench, we opine as follows taking note of Section 23(2)(b) of the Supreme Court Act, 2011 and Rules 21 and 23 of the Supreme Court Rules, 2012;(a)The application satisfies the principles set out in the case of Hassan Nyanje Charo v Khatib Mwashetani & 3 Others SC Application No. 15 of 2014; [2014] eKLR where we stated thus;“In the emerging jurisprudence, the concept of “timelines and timeliness” is generally upheld, as a vital ingredient in the quest for efficient and effective governance under the Constitution. However, even as we take due account of that context, we remain cognizant of the Court’s eternal mandate of responding appropriately to individual claims, as dictated by compelling considerations of justice….. As the sluggish motion of the judicial machinery enjoys no constitutional privilege, as against the specific guarantees of the Bill of Rights, the inevitable decision in this matter, is one that favours the suitor’s claim.”(b)Noting that it is the slow wheels of the Judiciary machinery that has occasioned the Applicants’ inability to file their Appeal on time, the delay of 8 months is not, in the circumstances, inordinate, given the explanation proffered for the delay, that no appeal could properly be filed without the record of the Court of Appeal.(c)None of the Parties is to blame for the delay and so costs must abide the cause.

Orders(a)The Notice of Motion application dated 17th August, 2017 is hereby allowed and the time allowed to file an appeal out of time is hereby extended.(b)The Applicants are hereby granted leave to file an appeal within 14 days from today’s date; and(c)Costs shall abide in the cause.(6)Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF NOVEMBER, 2018. ................D. K. MARAGACHIEF JUSTICE/PRESIDENT OF THE SUPREME COURT......................................M. K. IBRAHIMJUSTICE OF THE SUPREME COURT........................J. B. OJWANGJUSTICE OF THE SUPREME COURT........................S. C. WANJALAJUSTICE OF THE SUPREME COURT........................I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalTHE REGISTRARSUPREME COURT OF KENYA