[2023] KESC 13 (KLR)

Okoiti & 2 others v Attorney General & 14 others (Petition 2 (E002) of 2021) [2023] KESC 13 (KLR) (17 February 2023) (Ruling)

Neutral citation: [2023] KESC 13 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Petition 2 (E002) of 2021

PM Mwilu, DCJ & V-P

February 17, 2023

Between

Okiya Omtatah Okoiti

1st Appellant

Anthony Otiende Otiende

2nd Appellant

Katiba Institute (KI)

3rd Appellant

and

Attorney General

1st Respondent

Selection Panel for the National Land Commission

2nd Respondent

National Executive

3rd Respondent

Moses Kiptum Sananga

4th Respondent

Speaker of the National Assembly

5th Respondent

Gershom Otachi Bw’omanwa

6th Respondent

Alister Murimi Mutugi

7th Respondent

James K. Tuitoek

8th Respondent

Getrude Nduku Nguku

9th Respondent

Reginald Okumu

10th Respondent

Samuel Kazungu Kambi

11th Respondent

Hubbie Hussein Al-Haji

12th Respondent

Esther Murugi Mathenge

13th Respondent

Tiya Galgalo

14th Respondent

National Land Commission

15th Respondent

(Being an application for review of the Registrar’s Decision dated 22nd January 2022 declining to lodge and admit for filing the Petition and Record of Appeal)

The thirty days’ timeline for institution of appeals to the Supreme Court runs from the date of filing of the notice of appeal and transmission of the same to the court

The instant application sought the review and vacation of the decision of the Registrar declining to lodge and admit for filing the applicant’s petition and records of appeal for failure to submit the notice of appeal and the judgment of the Court of Appeal. The court held that the thirty days’ timeline for institution of appeals ran from the date of filing of the notice of appeal and for purposes of the instant court, transmission of the same to the court. The court also held that while the Court of Appeal judgment could be contained in the record of appeal under rule 40(1)(c) of the Supreme Court Rules or a supplementary record under rule 40(4), the same could not be said of the notice of appeal which had to be transmitted to the court before service upon the parties.

Reported by Kakai Toili

Civil Practice and Procedure- appeals - appeals to the Supreme Court - timelines for institution of appeals to the Supreme Court - when did the thirty days’ timeline for institution of appeals to the Supreme Court begin to run -Supreme Court Rules, 2020, rule 37. Civil Practice and Procedure- appeals - appeals to the Supreme Court - institution of appeals - notice of appeal - whether under the Supreme Court Rules a notice of appeal could be contained in the record of appeal or a supplementary record of appeal -Supreme Court Rules, 2020, rule 40.

Brief facts The applicant filed the instant application seeking the review and vacation of the Registrar’s decision of January 22, 2021 declining to lodge and admit for filing the petition and records of appeal for failure to submit the notice of appeal and the judgment of the Court of Appeal. The applicant contended that it filed and served the notice of appeal within four days of the Court of Appeal decision. The appellant further submitted that they filed the appeal on January 20, 2021, within the 30 days of filing the notice of appeal by which time it had not received the certified judgment and signed notice of appeal from the Court of Appeal which fully operated virtually.The petition of appeal and record of appeal were lodged in court on January 27, 2022 by the Deputy Registrar without any formal review of the Registrar’s ruling paving way for compliance before the Registrar. It was only upon the matter being escalated to the court to consider the issue of representation that the issue of the Registrar’s ruling was brought to the attention of parties prompting the instant application seeking to review the Registrar’s decision.The applicant stated that having omitted some documents, it filed a supplementary record of appeal containing the judgment and notice of appeal and that the fifteen (15) day window envisaged under the rule 40(4) of the Supreme Court Rules, 2020 was curtailed by the Registrar’s decision. The applicant argued that the Registrar’s decision was unfair and against the rules of natural justice, the applicant not having been allowed any opportunity to explain the circumstances of the filing.

Issues

When did the thirty days’ timeline for institution of appeals to the Supreme Court begin to run?

Whether under the Supreme Court Rules a notice of appeal could be contained in the record of appeal or a supplementary record of appeal.

Held

Rule 36 of the Supreme Court Rules provided that a person who intended to appeal to the court ought to file a notice of appeal within fourteen (14) days from the date of judgment and to transmit a copy to the Registrar of the court. Rule 15 of the Supreme Court Rules provided that the court could extend the time limited by its Rules or by any decision of the court. A notice of appeal was a primary document to be filed outright and it was a jurisdictional pre- requisite.

Rule 6(1)(b) of the Supreme Court Rules allowed the Registrar to decline pleadings that were not in accordance with the Constitution, the Supreme Court Act, the Supreme Court Rules, or the court’s practice directions for filings. The Registrar’s impugned ruling made under rule 6(1)(b) was on account of failure to include the judgment and the absence of a notice of appeal. However, the Deputy Registrar, in admitting the lodging of the petition and record of appeal referred to in the impugned ruling, impliedly reviewed the ruling, albeit un- procedurally in the absence of a formal review application.

The applicant, in line with rule 36(1) of the Supreme Court Rules, filed at the Court of Appeal a notice of appeal on December 22, 2022 and served it on the parties. That was four days after delivery of the Court of Appeal judgment within the 14-day period. Notwithstanding the assertion that the Court of Appeal operated 100% virtually, resulting in notices of appeal being filed electronically, signed and returned to the parties, the signed notice of appeal by the Registrar of the Court of Appeal was never transmitted to the Registrar of the instant court within the timelines as stipulated under rule 36(3) or at all.

The applicant did not serve upon the respondents the transmitted copies of the notice of appeal in compliance with rule 37(1) of the Supreme Court Rules but served an un-transmitted copy thereof. The thirty days’ timeline for institution of appeal ran from the date of filing of the notice of appeal and for purposes of the instant court, transmission of the same to the court.

While the Court of Appeal judgment could be contained in the record of appeal under rule 40(1)(c) of the Supreme Court Rules or a supplementary record under rule 40(4), the same could not be said of the notice of appeal which had to be transmitted to the court before service upon the parties. The notice of appeal in the instant matter, having been availed to the court at the first instance by being mentioned as a schedule in the petition of appeal and as part of the supplementary record filed before the court on January 27, 2021, the same was already way out of the fourteen (14) day period of delivery of the judgment, despite having been filed on time.

Though the applicant had exercised its right to seek a review of the decision by the Registrar as provided under rule 6(2) of the Supreme Court Rules, the request had neither been accompanied by an application for extension of time nor an explanation for the lack of compliance offered as the mundane step in the first place, the issue being brought to the attention of the parties by the court.

Application dismissed.

Orders Applicant to bear the costs of the application for the 1st 2nd and 3rd respondents on one hand and the 13th, 14th, and 15th respondents on the other hand.

Citations Cases Bookpoint Limited v Guardian Bank Limited & another ([2021] eKLR) — Explained

Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others ([2014] eKLR) — Explained

Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others ([2014] eKLR) — Explained

University of Eldoret & another v Hosea Sitienei & 3 others ([2020] eKLR) — Explained

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others ([2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC)) — Explained

Statutes Constitution of Kenya, 2010

AdvocatesNone mentioned

Ruling

[1]Upon perusing the notice of motion by the applicant, Katiba Institute, dated July 23, 2022 and filed on November 3, 2022brought pursuant to rule 6(2) of the Supreme Court Rules, 2020seeking orders that:1. The court be pleased to review and vacate the Registrar’s (Hon. Nyaiyaki) decision of January 22, 2021 declining “to lodge and admit for filing” the petition and records of appeal “for failure to submit the notice of appeal and the judgment of the Court of Appeal”;2. There be no costs order;

[2]Upon considering the grounds in support of the application, based on the supporting affidavit sworn by Michael Munguti on July 23, 2022 and the submissions dated July 26, 2022 and filed on November 3, 2022 wherein the applicant contends that, aggrieved by the decision of Court of Appeal delivered on December 18, 2020 they filed and served the notice of appeal on December 22, 2022, within four days of the Court of Appeal decision, with no party contesting this fact; that the appellant thereafter filed its appeal on January 20, 2021, within the 30 days of filing the notice of appeal under rule 38(1)(a) of the Court’s Rules by which time it had not received the certified judgment and signed notice of appeal from the Court of Appeal which fully operates virtually; that having omitted some documents, they filed a supplementary record of appeal dated January 26, 2021 under rule 40(4) of theSupreme Court Rules, 2020 containing the judgment and notice of appeal; and that the fifteen (15) day window envisaged under the said rule 40(4) was curtailed by the Hon. Registrar’s decision of January 22, 2021 which declined to lodge and admit for filing the petition of appeal;

[3]Upon considering the applicant’s further grounds that the Registrar’s decision was unfair and against the rules of natural justice, the applicant not having been allowed any opportunity to explain the circumstances of the filing; and that it was also irrational and unreasonable as comparatively enunciated in the South Africa’s Constitutional Court’s case of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and others [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC); and

[4]Upon considering that the application is not opposed by the 1st and 2nd appellants and the 5th, 6th to 14th respondents in the petition of appeal, respectively.

[5]Noting the 1st, 2nd and 3rd respondents’ grounds of objection and submissions dated November 3, 2022 and December 3, 2022 respectively wherein they pray that the application be dismissed as the pleadings submitted by the applicant herein are not in consonance with the provisions of the Supreme Court Rules, 2020; that the Registrar reasonably and lawfully exercised her mandate within the confines of the law as guided by the provisions of rule 6(b) of the Supreme Court Rules, 2020; that the petitioners (applicants) neglected and or ignored to transmit the notice of appeal to the Registrar which is a prerequisite to the institution of an appeal; that, contrary to what is alluded by the applicant, the notice of appeal is not among the documents rule 40 (4) gives room to be availed if omitted from the record of appeal; and that the applicant failed to obtain and file a certificate of delay in relation to the absence of a certified judgment of the decision sought to be appealed against;

[6]Further noting the 13th, 14th and 15th respondents’ submissions dated November 9, 2022 and filed on November 18, 2022 wherein they submit that the application is bad in law and is unmeritorious since the petitioners lodged a non-compliant and defective record of appeal; and that the Registrar cannot be blamed for acting in accordance with the Supreme Court Rules; and

[7]Considering rule 36 of the Supreme Court Rules which provides that a person who intends to appeal to this court ought to file a notice of appeal within fourteen (14) days from the date of judgment and to transmit a copy to the Registrar of this court; and rule 15 provides that the court may extend the time limited by its rules or by any decision of the court; and

[8]Apreciating this court’s decision in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others; SC Application No 16 of 2014, [2014] eKLR, as echoed in Bookpoint Limited v Guardian Bank Limited & another; SC Application No 4 (E006) of 2021 where it was held that a notice of appeal is a primary document to be filed outright and that it is a jurisdictional pre- requisite.

9. Taking into account the record in which I note that the Registrar made her ruling on January 22, 2021 in which she declined to lodge and admit for filing the petition and record of appeal for failure of the appellant to submit the notice of appeal and judgment of the Court of Appeal; that the said petition of appeal and record of appeal were nevertheless lodged in court on January 27, 2022 by the Deputy Registrar without any formal review of the Registrar’s ruling paving way for compliance before the Registrar; and that it was only upon the matter being escalated to the court to consider the issue of representation that the issue of the Registrar’s ruling was brought to the attention of parties prompting the present application seeking to review the Registrar’s decision.

[10]Having carefully considered the record, arguments and submissions by all the parties, I now opine as follows:a)Rule 6(1)(b) of the Supreme Court Rules allows the Registrar to decline pleadings that are not in accordance with the Constitution, the Act, the rules, or the court’s practice directions for filings. The Registrar’s impugned ruling made under this provision was on account of failure to include the judgment and the absence of a notice of appeal. However, the Deputy Registrar, in admitting the lodging of the petition and record of appeal referred to in the impugned ruling, impliedly reviewed the said ruling, albeit un- procedurally in the absence of a formal review application.b)It is acknowledged that the applicant, in line with rule 36(1) of this Court’s Rules, filed at the Court of Appeal a notice of appeal on December 22, 2022 and served it on the parties. This was four days after delivery of the Court of Appeal judgment within the 14-day period. Notwithstanding the assertion that the Court of Appeal operates 100% virtually, resulting in notices of appeal being filed electronically, signed and returned to the parties, the signed Notice of Appeal by the Registrar of the Court of Appeal was never transmitted to the Registrar of this court within the said timelines as stipulated under rule 36(3) or at all.c)The applicant did not serve upon the respondents the transmitted copies of the notice of appeal in compliance with rule 37(1) of the Court’s Rules but served an un-transmitted copy thereof.d)The thirty days’ timeline for institution of appeal run from the date of filing of the notice of appeal and for purposes of this court, transmission of the same to the court. As held in University of Eldoret & another v Hosea Sitienei & 3 others SC Application No 8 of 2020 [2020]eKLR:“(36)Rule 36 of the Supreme Court Rules 2020 provides for the filing of a notice of appeal within fourteen days of a decision of the Court of Appeal from which an intended appeal is founded. The filing of anotice of appeal is not premised on any occurrence or condition to be fulfilled by the appellant. The filing of anotice of appeal signifies the intention to appeal.” (Emphasis mine)I reiterate that the notice of appeal is a jurisdictional pre-requisite without which the court cannot infer the intention to appeal for purposes of this Court’s Rules.e)While the Court of Appeal judgment could be contained in the record of appeal under rule 40(c) or a supplementary record under rule 40(4), the same cannot be said of the notice of appeal which has to be transmitted to the court before service upon the parties.f)The notice of appeal in this matter, having been availed to the court at the first instance by being mentioned as a schedule in the petition of appeal and as part of the supplementary record filed before this court on January 27, 2021, the same was already way out of the fourteen (14) day period of delivery of the judgment, despite having been filed on time.g)Though the applicant has exercised it’s right to seek a review of the decision by the Registrar as provided under rule 6(2) of the Supreme Court Rules, the request has neither been accompanied by an application for extension of time nor an explanation for the lack of compliance offered as the mundane step in the first place, the issue being brought to the attention of the parties by the court. I am not satisfied as to the merit of the application and decline to exercise discretion to review the Registrar’s decision.h)On the issue of costs, I stand guided by the decision of this court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others; SC Petition No. 4 of 2012 [2014] eKLR where this court observed that the basic rule on attribution of costs is: costs follow the event. On this account, the applicant shall bear the costs of the respondents who opposed, to wit, the 1st 2nd and 3rd respondents on the one hand and the 13th, 14th and 15th respondents on the other hand.

11. Consequently, I make the following orders:(i)The notice of motion dated July 23, 2022 be and is hereby dismissed.(ii)The applicant shall bear the costs of this application for the 1st 2nd and 3rd respondents on one hand and the 13th 14th and 15th respondents on the other hand.Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF FEBRUARY, 2023. ....................................................P. M. MWILUDEPUTY CHIEF JUSTICE &VICE PRESIDENT OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRAR,SUPREME COURT OF KENYA