[2019] KESC 34 (KLR)

Sarah Anyangu Ochieng v Technical University of Kenya (Civil Application 7 of 2018) [2019] KESC 34 (KLR) (29 March 2019) (Ruling)

Sarah Anyangu Ochieng v Technical University of Kenya [2019] eKLR

Neutral citation: [2019] KESC 34 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Civil Application 7 of 2018

JB Ojwang, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

March 29, 2019

Between

Sarah Anyangu Ochieng

Petitioner

and

Technical University of Kenya

Respondent

(Being an application for extension of time to file an appeal against the Judgment and Orders of the Court of Appeal (P.N Waki, F. Sichale and S. Ole Kantai, JJA) at Nairobi delivered on 21st March, 2018 in Nairobi Court of Appeal Civil Appeal No. 21 of 2018)

Ruling

1. Upon perusing the Notice of Motion Application by the Applicant dated 24th April, 2018 and filed on 25th April, 2018 brought under Rules 31(1) 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 the Court of Appeal in Nairobi Civil Appeal No. 78 of 2018; and

2. Upon reading the Applicant’s grounds in support of the Application, the Supporting Affidavit sworn on 24th April, 2018; and

3. Upon considering the Applicant’s written submissions dated 25th May, 2018 and filed on 29th May, 2018 wherein the Applicant submits that the delay in filing the appeal was occasioned by the fact that the Court of Appeal had given a Judgment date for 26th January 2018 but did not deliver any Judgment on that date; and, that the Applicant only became aware that a Judgment had been delivered when her advocates received a letter dated 12th April 2018 from the Respondent’s Advocates demanding payment of costs by which time the 14 days period for filing an appeal to this Court had lapsed; and

4. Upon reading the Respondent’s Replying Affidavit sworn on 8th June 2018 and filed on 11th June 2018 in which it opposed the Application arguing that the same was brought inordinately and with undue and unexplained delay, and, that all parties were called to attend delivery of the Judgment on 21st March 2018 but the Applicant’s advocates did not show up; and that, in any event, the filing of the present Application is an afterthought; and further, that no certification under Article 163(4)(b) of the Constitution was obtained at the Court of Appeal prior to its filing; and

5. Upon considering the Respondent’s written submissions dated 8th June 2018 and filed on 11th June, 2018 in which, the Respondent has argued that the jurisdiction of this Court has not been properly invoked under Article 163 of the Constitution as read with Rule 30(2) of the Supreme Court Rules; and, that the Application is otherwise an abuse of Court process fit only for dismissal;

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 Charo v Mwashetani and 3 others (2014) KLR-SCK and Application No.16 of 2014, Nicholas Kiptoo Arap Korir Salat v IEBC and 7 others among other cases.(b)In determining such an application, the Court has to consider whether the explanation given for any delay is reasonable and credible. That there also exist extenuating circumstances to enable the Court exercise its unfettered jurisdiction. The delay, in any event, should not be so inordinate as to show that an applicant has been slothful and filed such an application as an after-thought.(c)In the present case, the delay is of thirty one (31) days explained by non-attendance at the delivery of the Court of Appeal Judgment on 21st March 2018 because no notice of such delivery was given to the Applicant’s advocates, a claim vehemently denied by the Respondent. We find that explanation not tenable in view of the fact that the Court of Appeal record, which would have shown whether notice was given or not has not been placed before us and there is no denial of the Respondent’s contention that such a notice was issued hence the reason its advocates attended Court.(d)More fundamentally, even if the delay is excusable, we note that the Respondent has raised the issue of the jurisdiction of this Court to determine the intended appeal. In other instances, we have declined to address the issue of jurisdiction in an application for extension of time to file an appeal. In this case however, the issue is glaring and must be addressed at this stage. We say so because we have read the Judgment of the Court of Appeal and perused the draft Notice of Appeal attached to the Applicant’s Affidavit in support. The Notice seeks to challenge “the whole decision that the appeal lacked merit”.(e)The draft Notice of Appeal does not however indicate whether the intended Appeal is to be filed under Article 163(4)(a) of the Constitution as a matter of right or 163(4)(b) as a matter of great public importance.(f)It is not for this Court to speculate on whether the intended Appeal falls into either of the two categories of appeals before it. Without clarity on the crucial question of the jurisdiction being invoked, the intended appeal is rendered vague, frivolous and untenable.

7. Having therefore considered the Application, the Affidavit in support and Supplementary Affidavit 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;

Orders(a)The application dated 24th April, 2018 and filed on 25th April, 2018 is hereby dismissed.(b)The Applicant shall bear costs Application. (8. Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MARCH, 2019. ..................M. K. IBRAHIMJUSTICE OF THE SUPREME COURT...................J. B. OJWANGJUSTICE 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 originalTHE REGISTRARSUPREME COURT OF KENYA