[2023] KESC 7 (KLR)

Senate & 3 others v Speaker of the National Assembly & 10 others (Petition 19 (E027) of 2021) [2023] KESC 7 (KLR) (Civ) (17 February 2023) (Ruling)

Neutral citation: [2023] KESC 7 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Civil

Petition 19 (E027) of 2021

MK Koome, CJ, PM Mwilu, DCJ & V-P, SC Wanjala, NS Ndungu & W Ouko, SCJJ

February 17, 2023

Between

The Senate

1st Appellant

The Speaker of Senate

2nd Appellant

Senate Majority Leader

3rd Appellant

and

Senate Minority Leader

Applicant

and

The Speaker of the National Assembly

1st Respondent

The National Assembly

2nd Respondent

The Council of County Governors

3rd Respondent

The Attorney General

4th Respondent

Kenya Medical Supplies Authority

5th Respondent

Institute for Social Accountability

6th Respondent

Mission for Essential Drugs and Supplies

7th Respondent

Katiba Institute

8th Respondent

Pharmaceutical Society of Kenya

9th Respondent

Elias Murundu

10th Respondent

The Commission on Revenue Allocation

11th Respondent

(Being an application for enlargement of time to file a Notice of Cross Appeal out of time in Petition 19 (E027) of 2021)

Appellate documents filed out of time and without leave at the Supreme Court were a nullity and of no legal consequence.

The Supreme Court on limited circumstances, on account of public interest, could exercise its inherent jurisdiction to allow a party who filed documents out of time and without leave and to seek the court’s stamp of approval to deem the documents to be regularly on record.

Reported by John Ribia

Civil Practice and Procedure– appeals – appellate jurisdiction of the Supreme Court – where a party who had not sought leave of the court sought to have documents filed out of time to be regularly on record - whether the public interest nature of a dispute could warrant the Supreme Court to exercise its inherent jurisdiction to allow a party who filed documents out of time and without leave and to seek the court’s stamp of approval to deem the documents to be regularly on record. -Supreme Court Act(Act No. 7 of 2011) section 3A;Supreme Court Rules (2020),rules 3(5), 47(2)(b).

Brief facts The 1st, 2nd and 4th respondents sought leave of the court to enlarge time for filing of a notice of cross-appeal; they also sought prayers that their notice of cross-appeal annexed to the application be deemed as duly filed, served and properly on record; and that upon grant of the foregoing prayers, the 1st and 2nd respondents be permitted to rely in support of their cross-appeal, on the record of appeal lodged by the appellants.The appellants and the 3rd respondent were opposed to the application on the grounds that the right to appeal was not absolute; that under the Supreme Court Rules, 2020 a party was permitted to file a cross appeal either 30 days after the main appeal has been served on that party or 30 days before the hearing of the appeal.

Issues Whether the public interest nature of a dispute could warrant the Supreme Court to exercise its inherent jurisdiction to allow a party who filed documents out of time and without leave and to seek the court’s stamp of approval to deem the documents to be regularly on record.

Held

Time was extended at the unfettered discretion of the court based on the unique circumstances of each case. The burden was upon the applicant to explain to the satisfaction of the court the reasons for delay; and whether there would be any prejudice suffered by the opposing parties if the extension was granted, among other considerations.

The delay involved did not qualify to be described as inordinate. The reasons given were plausible. The public interest nature of the instant dispute militated against shutting out or throwing out of the seat of justice any party in the resolution of the instant dispute, and being satisfied that no party would be prejudiced if the time was extended.

Rule 47(2)(b) of the Supreme Court Rules, 2020 required the 1st and 2nd respondents to lodge eight copies of the memorandum of appeal and record of appeal and not to rely on other parties’ pleadings. It was highly irregular and presumptive in the Supreme Court to file documents out of time without leave and thereafter to seek the court’s stamp of approval to deem them to be regularly on record.

The submissions filed out of time without prior leave by 1st and 2nd respondent, as well as those of the 4th respondent were rejected. They were a nullity and of no legal consequence. The public interest nature of the instant dispute warranted the exercise of the inherent powers of the Supreme Court under section 3A of the Supreme Court Act and rule 3(5) of the Supreme Court Rules to excuse the infractions by the 1st 2nd and 4th respondents. They were instead granted leave to exchange and file afresh their written submissions.

Application allowed.

Orders

The 1st and 2nd respondents were to file and serve the notice, memorandum and record of appeal in compliance with rule 47 of theSupreme Court Ruleswithin 30 days from the date of the instant ruling.

The 1st, 2nd and 4th respondents were to file and serve afresh their written submissions within 14 days from the date of the instant ruling.

No orders as to costs.

Citations Cases Rai & 3 others v Rai & 4 others (Petition 4 of 2012 ;[2014]eKLR) — Followed

Salat, Nicholas Kiptoo Arap Korir v IEBC & 7 others (Application 16 of 2014; [2014] KESC 12 (KLR)) — Followed

Statutes Constitution of Kenya, 2010 — Article 109 -114, 50 ,159 — Interpreted

Parliamentary Service Act,2019 (Act No 22 of 2019) — In general — Cited

Supreme Court Act,2011 (Act No 7 of 2011) — Section 3A — Interpreted

Supreme Court (General) Practice Directions, 2020 (Act No 7 of 2011 Sub Leg) — Rule 3(2)(5); 15(2); 31(6) ;47(2)(b) — Interpreted

AdvocatesNone mentioned

Ruling

Representation:Mr Okong’o Omogeni SC, Mr Letangule and Ms Mercy Thanji for the appellants (Letangule & Co Advocates)Mr Paul Muite SC and Mr Issa Mansur for the 1st & 2nd respondents (Issa & Company Advocates)Mr Simiyu and Ms Munyao for the 3rd respondent (Manyonge Wanyama & Associates LLP)Mr Emmanuel Bitta for the 4th respondent (Office of the Attorney General)Mr Ochiel Dudley, Ms Nkonge and M Ray Odanga for the 6th & 8th respondents (Katiba Institute)Ms Omamo for the 7th respondent (Omamo & Co Advocates) 1. Uponperusing the notice of motion dated January 30, 2023 and filed on January 31, 2023 by the 1st and 2nd respondents, pursuant to articles 50 and 159 of the Constitution as well as rules 3(2), 3(5), 15(2), 31(6) and 47(2)(b) of the Supreme Court Rules, 2020 seeking leave of the court to enlarge the time for filing of a notice of cross-appeal; seeking that their notice of cross-appeal annexed to the application be deemed as duly filed, served and properly on record; and that upon grant of the foregoing prayers, the 1st and 2nd respondents be permitted to rely in support of their cross-appeal, on the record of appeal lodged by the Petitioners; and

2. Uponperusing the affidavit sworn by Samuel Njoroge, the Clerk of the National Assembly on January 30, 2023 in support of the motion that gives a detailed account of the circumstances that necessitated the aforesaid motion and;

3. Upon considering the written submissions by the 1st and 2nd respondents filed on January 31, 2023, wherein they explain that following the changes in the National Assembly administration after the August 9, 2022 General Elections, a decision was taken to challenge only a part of the judgment of the Court of Appeal that, which in their view, purports to expand the legislative mandate of Senate to cover a category of Bills not envisaged under articles 109 to 114 of the Constitution; that as a result of that decision, the operations and legality of the Parliamentary Service Act has been challenged in HC Constitutional Petition No E469 of 2022, Okiya Omtatah Okoiti v National Assembly & 3 others, to which the National Assembly has raised an objection on account of the pendency of this appeal; and

4. Upon notingthat the appellants in their replying affidavit and written submissions of February 1, 2023are opposed to the application on the grounds that the right to appeal is not absolute; that under the Supreme Court Rules, 2020 a party is permitted to file a cross appeal either 30 days after the main appeal has been served on that party or 30 days before the hearing of the appeal; that on the occasions the matter was mentioned before the Deputy Registrar, including December 2, 2022, the 1st and 2nd respondents never indicated or expressed their intention to file a cross-appeal; that since the 13th Parliament was inaugurated, the 1st and 2nd respondents have had ample time to lodge both the notice and cross- appeal; that the 1st and 2nd respondents’ allegation that they have only realised the need of filing the intended cross appeal is deceitful and an afterthought; that their conduct is aimed at circumventing the court’s directions as evinced by their sneaked-in submissions dated January 20, 2023 despite the Deputy Registrar’s directions of December 2, 2022 that no further documents shall be filed after that date; and that the Court should decline to exercise its discretion in favour of the 1st and 2nd respondents; and

5. Upon furthernoting that the 3rd respondent in its grounds of opposition and written submissions are equally opposed to the application on the grounds that rule 47(2)(b) of the Supreme Court Rules, 2020 provides, in mandatory terms for the filing of a cross appeal within 30 days of service of the appeal or within 30 days before the hearing of the appeal; and that the delay to lodge the intended cross-appeal is unreasonable and intended to scuttle the hearing of the main appeal; and

6. Also considering the 6th and 8th respondents’ written submissions dated February 1, 2023 in which they too oppose the application on similar grounds as the 3rd respondent;

We Now therefore Opine as Follows: 7. Restating the principles governing applications for extension of time as enunciated by the court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7others; SC Application No 16 of 2014; [2014] eKLR; that time is extended at the unfettered discretion of the court based on the unique circumstances of each case; that the burden is upon the applicant to explain to the satisfaction of the court the reasons for delay; and whether there will be any prejudice suffered by the opposing parties if the extension is granted, among other considerations; and

8. Upon applyingthese strictures to the rival submissions; on the one hand that the delay was inordinate and without any justifiable reasons, and on the other hand that the changes in the administration of the National Assembly was reason enough in explaining the delay; and

9. Upon examiningrule 47(2)(b) of the Supreme Court Rules, 2020, on the lodgement of a memorandum of appeal and record of appeal, and being satisfied, in the given circumstances, that the delay involved does not qualify to be described as inordinate and the reasons given are plausible; and

10. Further, the public interest nature of this dispute militates against shutting out or throwing out of the seat of justice any party in the resolution of this dispute, and being satisfied that no party will be prejudiced if the time is extended;

11. In the circumstances, we are minded to consider granting the application, while reminding the 1st and 2nd respondent that, by rule 47(2)(b) aforesaid, they are required to lodge eight copies of the memorandum of appeal and record of appeal and not to rely on other parties’ pleadings as they have prayed.We also reiterate the caution we issued in Nicholas Kiptoo Arap Korir Salat v IEBC & 7others (supra), that it is highly irregular and presumptive in this court to file documents out of time without leave and thereafter seek court’s stamp of approval to deem them to be regularly on record.It is in the same spirit that we reject the submissions filed out of time and without prior leave by 1st and 2nd respondent on January 20, 2023 as well as those of the 4th respondent filed on January 26, 2023. They are, in our words in Nicholas Kiptoo Arap Korir Salat v IEBC & 7others (supra), “a nullity and of no legal consequence”. We follow the course we adopted in that case, and expunge those sets of submissions from the record.

12. Reiterating the public interest nature of this dispute, we exercise our inherent powers under section 3A of the Supreme Court Act and rule 3(5) of the Supreme Court Rules to excuse the foregoing infractions by the 1st 2nd and 4th respondents. They are instead granted leave to exchange and file afresh their written submissions.

13. Since the award of costs is discretionary as this court explained inJasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR, no party, in the instant case, is at fault hence we make no orders as to costs.

14. In the circumstances, we allow this application and make the following orders;a.The application dated January 30, 2023 and filed on the January 31, 2023 is hereby allowed.b.The 1st and 2nd respondents will file and serve the notice, memorandum and record of appeal in compliance with rule 47 of the Supreme Court Ruleswithin thirty (30) days from the date hereof.C.The 1st, 2nd and 4th respondents will file and serve afresh their written submissions within fourteen (14) days from the date of this ruling.d.There shall be no orders as to costs.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF FEBRUARY, 2023. …………………………………………………M. KOOMECHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT…………………………………………………P. M. MWILUDEPUTY CHIEF JUSTICE & VICE PRESIDENT OF THE SUPREME COURT…………………………………………………S.C. WANJALAJUSTICE OF THE SUPREME COURT…………………………………………………NJOKI NDUNGUJUSTICE OF THE SUPREME COURT…………………………………………………W. OUKOJUSTICE OF THE SUPREME COURT*I certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA