Orange Democratic Movement Party & another v Opiyo & 2 others (Election Petition Appeal (Application) E186 of 2022) [2022] KECA 893 (KLR) (12 August 2022) (Reasons)
Neutral citation:
[2022] KECA 893 (KLR)
Republic of Kenya
Election Petition Appeal (Application) E186 of 2022
MSA Makhandia, F Tuiyott & HA Omondi, JJA
August 12, 2022
Between
Orange Democratic Movement Party
1st Appellant
National Elections Board ODM – Party
2nd Appellant
and
Geoffrey Otieno Opiyo
1st Respondent
Zakayo Ongono Okuma
2nd Respondent
Independent Electoral and Boundaries Commission
3rd Respondent
(Being an application for extension of time to file a notice of appeal out of time from the judgment of the High Court of Kenya at Kisumu, (Kamau, J.) delivered on 27th May, 2022 in HCCA NO. E034 of 2022)
Reasons
1.On 3rd August 2022, we rendered a decision, extempore, dismissing the Notice of Motion dated 15th July 2022. We now give the reasons for that decision pursuant to rule 34 (7) of the Court of Appeal Rules, 2022.
2.The Motion sought two substantive prayers; for stay of execution of the judgment and decree of Hon. Kamau, J delivered on 27th May, 2022 and the ruling and order delivered on 13th July, 2022 both in Kisumu Civil Appeal No. 034 of 2022 Zakayo Ongondo Okuma –vs- Geoffrey Otieno Opiyo & 3 Others; and for leave to file a Notice of Appeal out of time against the judgment of 27th May, 2022.
3.At plenary hearing, learned counsel Mr. Juma for the applicants informed us that the applicants were abandoning the application for stay. Stripped of it, what remained for our hearing and consideration was an application for enlargement of time brought under rule 4 of the Rules of this Court. Before he argued the application, we urged counsel to reflect on a jurisdictional issue. By dint of rule 55 of our Rules, an application for enlargement of time to file a Notice of Appeal out of time is a matter to be heard by a single judge sitting on behalf of the Court and there would be doubt as to whether the Court, comprising of a three judge bench as we sat, had jurisdiction to hear the matter. Notwithstanding our gentle prod, learned counsel pressed on with the application.
4.The contention by the applicants was that given the exigencies of the matter and in particular being an application arising from an election matter, it, and possibly the intended appeal needed to be heard and determined before the election date of 9th August, 2022, less than a week away, this Court, as constituted, could thus hear the matter. It was explained that the application was filed 8 days before the hearing date but there was delay in processing payment of court fees by the administrative arm of the Judiciary. Counsel contended that the applicants were therefore blameless for this matter being listed before this bench. We were asked to shun procedural technicalities in the spirit of Article 159(2) of the Constitution.
5.Learned counsel Mr. Ayieko for the 1st respondent and learned counsel Ms. Okech for the 3rd respondent were silent on the question of jurisdiction, while the 2nd respondent’s counsel, although served, did not appear.
6.In prefatory, we will deal with jurisdictional issue because should we find ourselves lacking legal authority to deal with this matter then we must down our tools.
7.Rule 55 of the Court of Appeal Rules 2022 reads;
8.An application for enlargement of time is brought pursuant to rule 4, one to be heard by a single judge. It does seem, however, that there will be occasion when a single judge matter may be heard by the Court. The proviso to sub rule 1 of rule 55 contemplates this. But as is explicit from the wording of the proviso it will only be upon an adjournment by the single judge for determination by the Court. The proviso presupposes that the single judge will certify that he/she deems the application, though a single judge matter, to be fit for determination by the Court. This may be in view of some public interest consideration or such other reason.
9.Clearly, where, like here, the applicants are of a view that there is a special circumstance that would require an application for enlargement of time to be heard by the Court, then the applicants would first have to move a single judge for an order of adjournment of the application for determination by the Court. In this event it was incumbent upon the applicants to alert the Registrar of this Court that the matter ought to have been listed before a single Judge to enable them seek the appropriate certification or order from the single Judge. This avenue was available to the applicants and they cannot lean on the overworked provision of Article 159 (2) of the Constitution for an easy way out. It is simply not available.
10.We have to observe that the applicants find themselves in this difficulty because of bringing an application which is the preserve of a single judge with one of the full Court in one motion. The latter being the application for stay. An unacceptable hybrid.
11.Yet even if we had jurisdiction to hear the application for enlargement of time would still have been inclined to disallow it.
12.The power of this Court granted by Rule 4 of the Court of Appeal Rules to enlarge time is discretionary. A discretion guided by well settled considerations. The decision in Fakir Mohamed –vs- Joseph Mugambi & 2 Others [2005] eKLR restated those considerations to be: -
13.The reasons proffered by the applicants for failing to file the notice of appeal timeously are that they attempted to purge the contempt of the Political Parties Disputes Tribunal's “PPDT” judgment which was upheld by the High Court, in good time and were of the honest belief that the orders of the High Court were discharged when the applicants facilitated a consensus meeting held between the 1st and 2nd respondents and all aspirants who participated in the primaries for South Kasipul Ward which bore fruit on 19th May 2022.; that on 21st May, 2022 the issue of party primaries escalated to the applicants’ central committee which considered the PPDT’s judgment and the minutes of the consensus meeting and decided on the 2nd respondent as its preferred candidate; that in their presumption of compliance, they did not instruct their advocates to appeal the judgment of 27th May 2022; and that it was only when their officials were found in contempt of the orders emanating from the judgment of 27th May 2022 that it became necessary to appeal both against the judgment and the ruling of 13th July 2022.
14.What amounts to inordinate delay will depend on the circumstances of each case. In this regard the Supreme Court in Nicholas Kiptoo Arap Korir Salat vs Independent Electoral & Boundaries Commission & 7 others [2014] eKLR underscored the need of parties to electoral disputes to comply with timelines thus: -
15.The explanation given by the applicants is as convoluted as it is confusing. As we understand it, the applicants contend that because of various events prior to the date of the judgment of 27th May 2022, they were of the belief that they had complied with the tribunal’s judgment and ruling and were therefore of the honest belief that they had equally discharged the judgment of the High Court as it had affirmed the decisions of the Tribunal. This is a contention that they were at this point, satisfied with the decision of the High Court. To the credit of the learned Judge she elaborated on the implication of the decision as follows;
16.A dissatisfaction appears to have arisen when the High Court delivered its ruling on 13th July, 2022 in which it concluded that the Chairperson of the 2nd applicant was in contempt of the order of the Court of 27th May, 2022. In making that finding the High Court observed;
17.In our understanding what aggrieves the applicants is the Ruling of 13th July, 2022 made in the contempt proceedings and not the Judgment of 27th May, 2022. The attempt to construct a nexus between the two decisions so as to explain a delay of over sixty (60) days is therefore unacceptable.
18.The effect of the delay is apparent in the affidavit in support of urgency sworn by learned counsel Jackson Awele Onyango for the applicants. He deposes:
19.It is a plea that both the application and intended appeal be heard and determined well before the 9th August, 2022. This is a herculean, almost impossible task, given that the application was filed on 2nd August, 2022, just seven (7) days before the election date! It cannot be any clearer that the delay is acutely inordinate in the circumstances of this case.
20.For reasons given, we strike out the application dated 15th July 2022 with costs on account of want of jurisdiction.
DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF AUGUST 2022.ASIKE-MAKHANDIA..................................JUDGE OF APPEALH. A. OMONDI................................JUDGE OF APPEALF. TUIYOTT...............................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR