[2020] KESC 7 (KLR)

Mwangangi & 10 others v Commissioner of Lands & 3 others (Civil Application 21 of 2020) [2020] KESC 7 (KLR) (9 October 2020) (Ruling)

Sammy Mwangangi & 10 others v Commissioner of Lands & 3 others [2020] eKLR

Neutral citation: [2020] KESC 7 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Civil Application 21 of 2020

PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

October 9, 2020

Between

Sammy Mwangangi

1st Applicant

Musyoka Ilima

2nd Applicant

Joseph Karanja

3rd Applicant

Paul Kimenye

4th Applicant

Ben Munywoki

5th Applicant

Joseph Muthiani

6th Applicant

Kyule Mwimbi

7th Applicant

Francis Musai

8th Applicant

Michael Ndaka

9th Applicant

Philip Maingi

10th Applicant

Nzula Muema

11th Applicant

and

Commissioner Of Lands

1st Respondent

James Gamau Wainaina

2nd Respondent

Raphael Muigai Mwangi

3rd Respondent

Paul Kahutu Kondia

4th Respondent

(Being an application to seek enlargement of time to file an application for review of the Ruling of the Court of Appeal at Nairobi (W. Ouko (P), M. Warsame & F. Sichale, JJA) dated 10th July 2020 seeking certification to appeal to the Supreme Court against the Judgment of the Court of Appeal at Nairobi (A. Visram, W. Karanja & M. Koome, JJA) dated 9th February 2018)

Ruling

1. Uponperusing the Notice of Motion by the Applicants dated 11th August 2020 and filed on 14th August 2020, which application is brought pursuant to the provisions of Section 26 and 53 of the Supreme Court Act, 2012, and in which the Applicants seeks enlargement of time to file an application for review of the ruling of the Court of Appeal (W. Ouko (P), M. Warsame & F. Sichale, JJA) in Civil Application SUPP No. 9 of 2018 (UR 6/2018) dated 10th July 2020; and

2. Uponperusing the supporting affidavit of Sammy Mwangangi deposed to on 11th August 2020 as well as the 3rd & 4th Respondents’ Replying Affidavit deposed to on 27th August 2020 and filed on even date; and

3. Uponconsidering the written submissions on record for the Applicants wherein they contend that the delay in filing the application for review to this Court was inadvertent, and was occasioned by delay in the assessment of filing fees and uploading of documents on this Court’s e-filing portal; andNoting thatthe 3rd & 4th Respondents in opposing the application submit that no purpose will be served by the extension as the matter they seek to pursue before this Court is not a matter of general public importance as alleged by the Applicants, but is one seeking to enforce private rights; and

4. Havingconsidered the application, the replying affidavit and the submissions filed by the respective parties, by a unanimous decision of this Bench, we find that;(a)This Court’s jurisprudence on extension of time was settled in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral & Boundaries Commission & 7 others SC (App) No. 16 of 2014; (2014) eKLR. In that matter, we stated inter alia that grant or refusal of extension of time is a matter of judicial discretion to be exercised, not subjectively or at whim or by rigid rule of thumb, but in a principled manner in accordance with reason and justice.(b)The Applicants have explained, cogently and reasonably, that the delay in filing their application for review of the Court of Appeal’s decision denying them timeous access to this Court was not of their own making. We thus accept that explanation.(c)The delay of six (6) days is in any event not inordinate and we see no prejudice caused to the Respondents, especially the 3rd and 4th Respondents, who have strenuously opposed the application.(d)The question whether the Applicants have established that the issues in contest are of general public important as enunciated in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone SC Application No. 4 of 2012; [2013] eKLR is a matter that cannot be determined now, it being the gravamen of the intended review application under Article 163(5) of the Constitution.(e)Prayer 3 of the Motion under consideration seeking orders that “the Originating Motion dated 22nd July 2020 under Reference No.SC APP;/E007/2020 be deemed as dully (sic) filed” is not one for granting in the present instance. It is best that a proper motion for review under the Constitution, the Supreme Court Act and Rules be filed pursuant to the orders granted herebelow.

5. In the circumstances, we now make ordersas follows;(a)The time within which to file the application for review of the Ruling of the Court of Appeal (W. Ouko (P), M. Warsame & F. Sichale, JJA) dated 10th July 2020 is hereby enlarged and the same to be filed within 7 days of this Ruling.(b)Directions to be taken before the Deputy Registrar thereafter.(c)Each party shall bear its costs of the Application.

6. Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF OCTOBER, 2020. ..........................P. M. MWILUDEPUTY CHIEF JUSTICE & VICE PRESIDENT OF THE SUPREME COURT...............................M. K. IBRAHIMJUSTICE OF THE SUPREME COURT..............................S. C. WANJALAJUSTICE OF THE SUPREME COUR.................................NJOKI NDUNGUJUSTICE OF THE SUPREME COURT.........................I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalRegistrar,Supreme Court of Kenya