[2023] KESC 34 (KLR)

Mohammed (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) v Rai Plywood (K) Limited & 5 others (Petition 17 (E021) of 2022) [2023] KESC 34 (KLR) (26 May 2023) (Ruling)

Neutral citation: [2023] KESC 34 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Petition 17 (E021) of 2022

MK Ibrahim, JA

May 26, 2023

Between

Zehrabanu Jan Mohammed (SC) (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi)

Appellant

and

Rai Plywood (K) Limited

1st Respondent

Nathaniel. K Lagat

2nd Respondent

District Land Registrar Uasin Gishu

3rd Respondent

Susan Cherubet & David K Chelugui (Suing as the administrators of the Estate of the Late Noah Kipngeny Chelugui)

4th Respondent

The Registrar Of Titles

5th Respondent

The National Land Commission

6th Respondent

(Being an application for the review and discharge of the decision of the Honorable Deputy Registrar issued on 13th January 2023)

Scope of the powers of the Supreme Court’s Registrar to impose sanctions/costs on a party that is not compliant with the Registrar’s directions.

The instant case was an application by a party in a Supreme Court appeal challenging the decision of the Deputy Registrar to bar them from filing submissions. The registrar barred them on grounds that they were contemptuous, the party having failed to file submissions when directed on grounds that they had a pending application for leave to file additional evidence; evidence which would be critical in their submissions. The Supreme Court held that in making decisions Registrars should distinguish a decision on the merits of the pleadings as opposed to mere administrative action. The court reviewed and discharged the decision of the Deputy Registrar and allowed the party to file the submissions upon the conclusion of its application for leave to file additional evidence.

Reported by John Ribia

Civil Practice and Procedure– directions – registrar’s directions – directions to file submissions issued by the registrar where a party had a pending application to adduce more evidence - what considerations should a court’s registrar make in imposing sanctions against a party who failed to comply with the registrar’s directions - whether the actions of the 3rd respondent to not file submissions in compliance with the registrar’s directions on grounds that they had sought leave to file an application to adduce more evidence that would be relevant in the submissions was contemptuous -Supreme Court Rules, 2020, rules 6 (2), (3), 31 and 32;Supreme Court (General) Practice Directions, 2020, sections 31, 32, 33

Brief facts The instant matter emanated from two interrelated appeals in which the Deputy Registrar of the Supreme Court had directed the parties to file submissions. The 3rd respondent contended that they were unable to comply with the directions of the Deputy Registrar for filing of submissions as they considered it imperative in the determination of the two interrelated appeals to first file an application to adduce more evidence. Subsequently the Deputy Registrar barred the 3rd respondent from filing submissions. Aggrieved the 3rd respondent filed the instant application to review and discharge the decision of the Supreme Court Registrar requiring the filing of submissions.

Issues

What considerations should a court’s registrar make in imposing sanctions against a party who failed to comply with the registrar’s directions?

Whether the actions of the 3rd respondent to not file submissions in compliance with the registrar’s directions on grounds that they had sought leave to file an application to adduce more evidence that would be relevant in the submissions was contemptuous.

Held

The role of a registrar to impose sanctions or orders costs against a party who failed to comply with the directions of the court pursuant to section 10 of the Supreme Court Act and rule 6(1)(c) of the Supreme Court Rules, 2020 and the Supreme Court’s authority to review the decision of the registrar under section 11 of the Supreme Court Act as read with rule 6(2) of the Supreme Court Rules 2020.

Prudence and precaution must be observed to ensure that the reasons proffered by the Deputy Registrar would clearly and specifically distinguish a decision on the merits of the pleadings as opposed to mere administrative action. A decision in which the law and rules were merely restated without justification may result in injustice.

The 3rd respondent’s actions were not in any way contemptuous. The reasons afforded by the 3rd respondent were cogent and valid. It was fair and reasonable for the application to adduce further evidence to be heard and determined first before the 3rd respondent filed its submissions in the two interrelated appeals both emanating from the impugned judgement of the Court of Appeal.

Application allowed.

Orders

The Supreme Court reviewed and discharged the decision of the Honorable Deputy Registrar issued on January 13, 2023 barring the 3rd respondent/applicant from filing submissions in the two interrelated appeals both emanating from the impugned judgment of the Court of Appeal.

The 3rd respondent/applicant was allowed to file submissions in the two interrelated appeal both emanating from the impugned judgment of the Court of Appeal upon determination of the application dated January 13, 2023 seeking to adduce further evidence.

Costs to be in the appeal.

Citations Cases Judicial Service Commission v Gladys Boss Shollei & another (Civil Appeal 50 of 2014; [2014] KECA 334 (KLR)) — Mentioned

Justice Amraphael Mbogholi Msagha v Chief Justice of the Republic of Kenya & 7 Others (Misc Appli 1062 of 2004; [2006] eKLR) — Mentioned

Odinga & 7 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5, 3 & 4 of 2013 (Consolidated); [2013] KESC 1 (KLR); [2013] 1 KLR 63) — Explained

Okiya Omtatah Okoiti & Nyakina Wycliffe Gisebe v Attorney General & Parliament of Kenya (Civil Application 1 of 2019; [2019] KESC 5 (KLR)) — Explained

Salat, Nicholas Kiptoo Arap Korir v Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014; [2014] KESC 12 (KLR)) — Mentioned

TN Godavarman Thirumulpad via the Amicus Curiae v Ashok Khot & Ane (AIR2006 SC 2007) — Mentioned

Wildlife Lodges Ltd v County Council of Narok & Anor ([2005] 2 EA 344 (HCK)) — Mentioned

Statutes Constitution of Kenya, 2010 (Const2010) — Article 21, 27, 48, 50(1) — Interpreted

Supreme Court Act, 2011 (Act No 7 of 2011) — Section 10, 11 — Interpreted

Supreme Court (General) Practice Directions, 2020 (Act No 7 of 2011 Sub Leg) — Section 31, 32, 33 — Interpreted

Supreme Court Rules, 2020 (Act No 7 of 2011 Sub Leg) — Rule 6(1)(c), 6 (2), (3), 31, 32 — Interpreted

AdvocatesMr. Julius Kemboy for Petitioner/RespondentMr. Kibe Muigai & Ms. Wairimu for 1st RespondentMr. Ahmednasir S.C. & Ms. Khadija for 3rd Respondent/Applicant

Ruling

RepresentationMr. Julius Kemboy for the petitioner/respondent(Kemboy Law Advocates)Mr Kibe Muigai & Ms Wairimu for the 1st respondent(Kinoti Kibe & Company Advocates)Mr Ahmednasir SC & Ms Khadija for the 3rd respondent/applicant(Ahmednasir Abdullahi Advocates LLP) 1. Upon perusing the notice of motion by the 3rd respondent dated January 27, 2023 and filed on February 3, 2023, anchored on section 31, 32, 33 of the Supreme Court (General) Practice Directions, 2020 as read together with rules 6 (2), (3), 31 & 32 of theSupreme Court Rules, 2020 seeking the following orders:a.The court be pleased to review and discharge the decision of the Honorable Registrar issued on January 13, 2023 barring the 3rd respondent/ applicant from filing submissions in the two interrelated appeals both emanating from the impugned judgement of the Court of Appeal.b.The 3rd respondent/applicant be allowed to file submissions in the two interrelated appeal both emanating from the impugned judgement of the Court of Appeal upon determination of the application dated January 13, 2023 seeking to adduce further evidence.c.The costs of the application be in the cause.

2. Upon considering the grounds on the face of the application and the supporting affidavit sworn on January 24, 2023 by David K Chelugui, the legal representative of the estate of the 3rd respondent, contending that they were unable to comply with the directions of the Deputy Registrar for filing of submissions as they considered it imperative in the determination of the two interrelated appeals to first file an application dated January 13, 2023 seeking to adduce further evidence before filing submissions, which needed to be determined first. Further, that despite that clarification, the Hon Deputy Registrar barred them from filing their submission in the two interrelated appeals; that this was despite the Hon Deputy Registrar giving directions for the disposal of their application dated January 13, 2023 seeking to adduce additional evidence, which outcome would affect their submissions; that the Hon. Deputy Registrar’s decision subverts the 3rd respondents’ right to fair hearing enshrined in article 50(1) of the Constitution, their equality before the law under article 27 of the Constitution and breaches the court’s duty to among other things protect and promote the rights of every party before it pursuant to article 21 of the Constitution. Additionally, that the 3rd respondent is a key party to the proceedings, defending its right to property with about one billion Kenya Shillings at stake, thus barring them from filing submissions would result in an unfair and unjust determination of the appeals; and

3. Upon perusing the 3rd respondent’s written submissions dated January 27, 2023 and filed on February 3, 2023 wherein in addition to the grounds in the application, it is contended that the decision of the Hon Deputy Registrar barring the 3rd respondent from filing submissions would be to give all of its opponents a platform while denying them a chance to present their side of the story; that the non-compliance was not out of negligence, ignorance or disobedience, rather abundant caution to adduce additional evidence that would fortify the 3rd respondent’s position that the decisions of the lower courts were correct. They rely on the decisions inJudicial Service Commission v Gladys Boss Shollei & Another Civil Appeal No 50 of 2014; [2014] eKLR,Justice Amraphael Mbogholi Msagha v Chief Justice of the Republic of Kenya & 7 Others Nairobi HCMCA No 1062 of 2004; [2006] eKLR, Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2015] eKLR, to urge that the decision by the Deputy Registrar goes against the principles of natural justice, violate the 3rd respondent’s right to fair hearing as enshrined under article 50 (1), as well as violate their right to access justice pursuant to article 48 and the right to equal benefit of the law as espoused under article 27 (1). They cite Okiya Omtatah Okoiti v Attorney General & Another, SC Application No 1 of 2019; [2019] eKLR to urge the need for judicial officers to ensure due process of the law is followed while having due regard for the affected parties’ interests and consequences of their decisions.

4. Upon considering the petitioner’s replying affidavit dated February 10, 2023 sworn by the petitioner averring that from the chronology of the events, the same demonstrated that the 3rd respondent not only chose to disrespect this court but also willfully disobeyed the orders and directions of the court; that the filing of the application to adduce additional evidence did not vary or defeat the mandatory orders of this court concerning the filing of written submissions; that the 3rd respondent invokes the constitutional safeguards on fair trial but he conveniently ignores the fundamental obligation of every party to aid in the dispensation of justice by complying with the orders and directions issued by the court in furtherance of an expeditious disposal of matters; and that the use of coarse language and choice epithets hurled at the Deputy Registrar for performing the judicial duties not only threatened the integrity and judicial authority of this apex court but also engenders the malaise of anarchy and brazen impunity in the administration of justice.

5. Upon perusing the petitioner’s written submissions dated February 10, 2023 and filed on February 15, 2023 wherein relying on the Supreme Court of India in TN Godavarman Thirumulpad via the Amicus Curiae v Ashok Khot & Ane AIR 2006 SC 2007 and Wildlife Lodges Ltd v County Council of Narok & Anor [2005] 2 EA 344 (HCK) it is urged that compliance with court orders is not a discretional matter, neither is it a favour to be doled out to the Judiciary; rather, it is a crucial matter of constitutional and civic obligation. Further, that this court’s discretion should be exercised judiciously and cannot avail when a party is contumeliously acting in defiance and that the circumstances of the Okiya Omtatah Okoiti case (supra) are entirely different from those of the present case submitting that the Deputy Registrar’s decision in this instant case cannot be said to be unreasonable and arbitrary.

6. The 1st respondent resolved to resonate with the reply and submissions made by the petitioner. the 4th to 6th respondents never made any response to the application.I now pronounce as follows, bearing in mind all these submissions:

7. Appreciating the role of a Registrar to impose sanctions or orders costs against a party who fails to comply with the directions of the court pursuant to section 10 of the Supreme Court Act and rule 6(1)(c) of the Supreme Court Rules, 2020 and this court’s authority to review the decision of the Registrar under section 11 of the Supreme Court Act as read with rule 6(2) of theSupreme Court Rules 2020.

8. Restating the principles in Okiya Omtatah Okoiti (supra) where this court expressed itself that prudence and precaution must be observed to ensure that the reasons proffered by the Deputy Registrar would clearly and specifically distinguish a decision on the merits of the pleadings as opposed to mere administrative action. A decision in which the law and rules are merely restated without justification may result in injustice.

9. Similarly, restating this court’s decision in Odinga & 7 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5, 3 & 4 of 2013 (Consolidated)) [2013] KESC 1 (KLR) while addressing itself on discretion to extend timelines stated:“It may be argued that the Supreme Court ought to apply the principle of substantial justice, rather than technicalities, particularly in a petition relating to Presidential election, which is a matter of great national interest and public importance. However, each case must be considered within the context of its peculiar circumstances. Also, the exercise of such discretion must be made sparingly, as the law and Rules relating to the Constitution, implemented by the Supreme Court, must be taken with seriousness and the appropriate solemnity. The Rules and time – lines established are made with special and unique considerations.” (Emphasis provided).

10. Noting from the record that directions to filing of submissions to the petition were first issued on August 1, 2022. The petitioner filed its submissions to the petition on October 27, 2022. On October 28, 2022, the respondents were directed to file their Submissions. As at December 2, 2022 only the 4th and 5th respondents had filed their submissions. On December 2, 2022 the 3rd respondent sought leave to finalize its submissions and prayed for leave to file an application to adduce more evidence. On January 13, 2023 the 3rd respondent had only filed the application seeking to adduce further evidence, noting that they would first await the determination of the application prior to filing its submissions.

11. Accordingly, this court finds that the 3rd respondents actions were not in any way contemptuous. It is my considered view that the reasons afforded by the 3rd respondent are cogent and valid. It is fair and reasonable for the application to adduce further evidence be heard and determined first before the 3rd respondent files its submissions in the two interrelated appeals both emanating from the impugned judgement of the Court of Appeal.

12. For the aforestated reasons I come to the conclusion that the 3rd respondent’s application dated January 27, 2023 has merit.

13. Consequently, I make the following orders:a.The court hereby reviews and discharges the decision of the Honorable Deputy Registrar issued on January 13, 2023 barring the 3rd respondent/ applicant from filing submissions in the two interrelated appeals both emanating from the impugned judgement of the Court of Appeal.b.The 3rd respondent/applicant be and is hereby allowed to file submissions in the two interrelated appeal both emanating from the impugned judgement of the Court of Appeal upon determination of the application dated January 13, 2023 seeking to adduce further evidence.c.Costs to be in the appeal herein.

Orders accordingly.DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF MAY 2023. ………………………………………………………….M.K. IBRAHIMJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA