[2019] KESC 44 (KLR)

Nyamboki v Gathuru (Application 6 of 2019) [2019] KESC 44 (KLR) (30 April 2019) (Ruling)

Harun Osoro Nyamboki v Peter Mujunga Gathuru [2019] eKLR

Neutral citation: [2019] KESC 44 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Application 6 of 2019

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

April 30, 2019

Between

Harun Osoro Nyamboki

Applicant

and

Peter Mujunga Gathuru

Respondent

(Being an application for extension of time to file and serve a Notice of Appeal and an Appeal out of time against the Ruling and Orders of the Court of Appeal (Karanja, Warsame & Azangalala, JJ.A) in Civil Appeal No. 184 of 2004 dated and delivered at Nairobi on the 27th May, 2016)

Ruling

1. Upon perusing the Notice of Motion Application by the applicant dated 20th February 2019, brought under Section 3 of the Supreme Court Act and Rules 3(2) & (5), 31, 33 and 53 of the Supreme Court Rules 2012, seeking an extension of time to file an appeal out of time against the Judgment and Orders of 27th May, 2016 the Court of Appeal in Civil Appeal No. 184 of 2004; and

2. Upon reading the Applicant’s grounds in support of the application and the supporting affidavit sworn on 20th February, 2019; and

3. Upon considering the applicant’s written submissions dated 20th February, 2019 and filed on 22nd February, 2019 wherein the applicant submits that the delay in filing the Notice of appeal was occasioned by the mistaken knowledge and belief that his former advocates Messers Oraro and Company Advocates, had filed the Notice of Appeal in the Court of Appeal, and that he should not be punished for counsel’s error; that the Applicant only became aware of the advocates’ failure to file the Notice in December 2018; that further, the Applicant was advised by its advocates on record, that his case required certification before admission to the Supreme Court as was the principle set in Re The Matter of the Interim Independent Electoral Commission, Appeal No. 2 of 2011; that the decision of this Court in Geoffrey Asanyo & 3 Others v. the Attorney General Petition No. 21 of 2015 has established an exemption to the principles in the Re Interim Case allowing the Supreme Court to exercise its inherent jurisdiction to right jurisdictional wrongs committed by the superior Courts, in instances where the issues of appeal have not arisen through the judicial hierarchy; and, that the said decision has therefore presented the Applicant with a new shot at justice; and

4. Upon reading the respondent’s replying affidavit sworn on 13th March 2019 and filed on 15th March 2019 in which he opposed the Application, on the basis that the same had been filed out of time, with no credible explanation for the inordinate delay; and that since the Applicant’s applications for certification under Article 163(4)(b) and under Article 163 (5) of the Constitution had been dismissed by the Court of Appeal and this Court respectively, the present Application is an afterthought, replete with falsehoods and deliberate distortion of facts, in an attempt to mislead the Court; and

5. Upon considering the respondent’s written submissions dated 13th March 2019 and filed on 15th March, 2019 in which, the respondent argues that this court has no jurisdiction to hear and determine this application, having heard and dismissed the application for certification under Article 163 (5) of the Constitution; that the delay is inordinate, inexcusable and/or unreasonable; that he has suffered great prejudice since 1983 and will continue to suffer should the application be allowed; and, that the Application is an afterthought and an abuse of Court process;

6. We find as follows;a.The jurisprudence of this Court on the considerations for grant or denial of an application for extension of time was well expressed in Nicholas Kiptoo Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others Application No. 16 of 2014 and Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others SC Application No. 15 of 2014; andb.In determining such an application, the Court has to consider whether the explanation given for any delay is reasonable and credible; whether there also exist extenuating circumstances to enable the Court exercise its unfettered jurisdiction; and that the delay, in any event, should not be so inordinate as to leave no doubt, that an applicant has been slothful, and filed such an application as an after-thought.c.In the present case, the four year (4) and two month (2) has neither been adequately explained, nor is the justification offered by the applicant credible. The delay is both untenable and unreasonable.

7. Having considered the Application and the Affidavit in support filed in support thereto, the Replying Affidavit in opposition thereof, and the written submissions of the respective parties, by a unanimous decision of this Bench, we make the following Orders under Section 23(2) (b) of the Supreme Court Act 2011, and Rules 21 and 23 of the Supreme Court Rules, 2012;

Ordersi.The application dated 20th February, 2019 and filed on 22nd February, 2019 is hereby dismissed.ii.The Applicant shall bear the costs of this application.Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF APRIL 2019. .....................P. M. MWILUDEPUTY CHIEF JUSTICE & VICE-PRESIDENT OF THE SUPREME COURT.....................M. K. IBRAHIMJUSTICE OF THE SUPREME COURT.....................S. C. WANJALAJUSTICE OF THE SUPREME COURT.....................NJOKI NDUNGUJUSTICE OF THE SUPREME COURT.....................I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA