Dado v Godhana & 2 others (Election Petition Appeal E002 of 2023) [2023] KECA 869 (KLR) (7 July 2023) (Judgment)
Neutral citation:
[2023] KECA 869 (KLR)
Republic of Kenya
Election Petition Appeal E002 of 2023
SG Kairu, P Nyamweya & GV Odunga, JJA
July 7, 2023
Between
Hussein Tuneya Dado
Appellant
and
Dhado Gaddae Godhana
1st Respondent
Independent Electoral and Boundaries Commission
2nd Respondent
Yonah Ogayo Owilo
3rd Respondent
(Being an appeal against the Judgment of the High Court of Kenya at Garsen (Hon. Lady Justice Njoki Mwangi) delivered on 3rd March, 2023 in Election Petition No. E001 of 2022)
Judgment
1.Article 180(1) of constitution the Constitution of Kenya, 2010 provides that:
2.Pursuant to the above Article, Kenyan voters went to general elections on 9th August, 2022 and the voters in Tana River County joined the other Kenyans in electing their Governor. At that election, the Appellant, Hussein Tuneya Dado, contested the said elections through the vehicle of Orange Democratic Movement (ODM) political party while the 1st Respondent, Dhado Gaddae Godhana, contested on a United Democratic Alliance (UDA) political party.
3.At the end of the electoral process the Electoral Management Body, the Independent Electoral and Boundaries Commission, the 2nd Respondent in this Appeal, announced the outcome thereof whose results were that the 1st Respondent had emerged the winner of that election having garnered 26,982 votes while the Appellant herein came a close second with 26,633 votes.
4.The Appellant was not satisfied with those results and challenged the same before the High Court sitting in Malindi vide Election Petition No. E001 of 2022 contending that the said election was not conducted in accordance with the principles laid out in the Constitution of Kenya, 2010, the electoral laws and regulations as it was tainted with serious illegalities, substantial irregularities and electoral malpractices on the part of the 2nd and 3rd Respondents. This, according to the Appellant, rendered the announcement and declaration of the said elections null and void. The Appellant herein therefore sought the following reliefs:
5.After hearing the evidence adduced by all the parties to the petition, the High Court (Njoki Mwangi, J) on 3rd March, 2023, dismissed the petition and upheld the 1st Respondent’s election as the Governor of Tana River County. The Learned Judge ordered the 2nd Respondent to pay to the 1st Respondent Kshs 3,000,000.00 being the costs of the petition while the Appellant was ordered to pay to the 1st Respondent the sum of Kshs 2,000,000.00 in respect thereof. Aggrieved by the said decision, the Appellant filed a Notice of Appeal dated 24th March, 2023 on 28th March, 2023.
6.By a Notice of Motion dated 4th April, 2023 expressed to be brought pursuant to Rule 36 of the Election (Parliamentary and County) Election Petition Rules, 2017 and Rule 6(2) of the Court of Appeal (Election Petition) Rules, 2017 (hereinafter referred to as “the Rules”), the 1st Respondent moved this Court seeking to have that Notice of Appeal be struck out for being filed and served outside the time stipulated by law. On his part the Appellant, in his Notice of Motion dated and filed on 6th April, 2023 expressed to be brought pursuant to Rules 5 and 17 of the Rules, supported by his affidavit sworn on even date, sought extension of time for filing and serving the said Notice of Appeal.
7.The main appeal was lodged on 30th March, 2023. In his memorandum of appeal, the Appellant based his challenge to the determination of the High Court on the following grounds:
8.The Appellant therefore sought orders that;a.The Appeal herein be allowed.b.The Judgment and Decree delivered on 3rd March, 2023 be set aside.c.The court holds and declares that the election for Governor Tana River County held on 8th August, 2022 was not conducted in accordance with the principles laid out in the Constitution of Kenya,2010 rendering the results declared on 12th August, 2022 null and void.d.The Court hold and declare that Dhadho Gaddae Godhana was not validly elected as Governor, Tana River County on 8th August, 2022.e.The Respondents do pay the costs of the Petition in the High Court and this Appeal.f.Any other Order as the Court may deem fit and just to grant.
9.On 17th April, 2023, Learned Counsel for the Appellant and the Respondents appeared before Gatembu, JA, and agreed by consent that the Appellant’s Notice of Motion dated 6th April, 2023 and the 1st Respondent’s Notice of Motion dated 4th April, 2023 be heard together with the appeal herein on 17th May, 2023. Consequently, the said applications were subsumed in the appeal. Directions were then given as to the filing of the submissions. Pursuant to the said directions, all the three matters were physically heard by us on 17th May, 2023. At the hearing, the parties were represented by learned counsel. Mr Cecil Miller appeared with Mr Peter Wena for the Appellant, Senior Counsel Prof Tom Ojienda appeared with Ms Awuor and Ms Siati for the 1st Respondent while Mr Munyithya appeared with Mr Mokaya for the 2nd and 3rd Respondents.
10.Since the issues raised in the two Motions go to the jurisdiction of this Court, we propose to dispose of the two Motions first and, depending on their outcomes, proceed to deal with the appeal thereafter.
11.The 1st Respondent’s Notice of Motion dated 4th April, 2023 is supported by the affidavit sworn on 4th April, 2023 by the 1st Respondent herein, Dhadho Gaddae Godhana. In that affidavit, the 1st Respondent averred that the Appellant’s appeal was inordinately filed out of time, 25 days after the delivery of the impugned judgment hence the Notice of Appeal ought to be struck out. It was averred that the Appellant was attempting to deceive this Court into determining a matter which was filed out of time.
12.On the other hand, the Appellant’s Notice of Motion dated and filed on 6th April, 2023 expressed to be brought pursuant to Rules 5 and 17 of the Rules supported by his affidavit sworn on even date sought extension of time for filing and serving the very Notice of Appeal that is sought to be struck out. According to the Appellant, pursuant to the aforesaid Rules, this court has the power to enlarge time for filing a Notice of Appeal. He averred that he was indisposed and had to take some time to rest and recover from 4th March, 2023 to 12th March, 2023 hence was unable to meet his advocates on record with a view of understanding the court’s judgment to enable him decide whether or not to appeal. He further averred that from 13th March, 2023 to 23rd March, 2023, he was unable to meet his advocates due to conflicting schedules and eventually met his advocates on 24th March, 2023. It was then that the advocates explained to him the context of the judgment and it was thereafter that he made the decision to lodge the appeal against the judgment by instructing the advocates to do so. His Notice of Appeal was filed on 28th March, 2023 and served on the Respondents Advocates on 30th March, 2023.
13.The Appellant, however, disclosed that although the Notice of Appeal was filed on 28th March, 2023 after the expiry of seven (7) days as provided by the Rules, the Record of Appeal was filed within 30 days as provided by Section 85A(b) of the Act and Rule 9 of the Rules. In the Appellant’s view, by extending time for filing and service of the said Notice of Appeal, the Court will not compromise the statutory requirement for the appeal to be heard timeously within the prescribed six (6) months as the Record of Appeal was filed electronically on 31st March, 2023. According to the Appellant, the 1st Respondents will not suffer any prejudice if the orders sought are granted as he will remain in the office pending the determination of the Appeal. It was therefore the Appellant’s case that it is in the interest of justice that the orders he has sought are granted and the Appeal is heard on merit.
14.In opposition to the Appellant’s application, the 3rd Respondent, the County Returning Officer, Tana River County, on behalf of himself and the 2nd Respondent filed a replying affidavit sworn on 9th May, 2023. According to him, the fact that the Appellant filed a Notice of Appeal on 28th March 2023, 25 days from the date of judgment, his application seeking the validation of the same can only be an attempt to defeat the orders sought by the 1st Respondent in his Application filed before this court and therefore an afterthought aimed at defeating the ends of justice. He averred that since rule 6(2) of the Rules stipulates that a Notice of Appeal shall be filed within 7 days of the date of the decision appealed against, the Notice of Appeal filed by the Appellant on 28th March 2023, contrary to the said rule, was incompetent and bad in law. In the 3rd Respondent’s view, the delay for 25 days from the date of judgment to file a Notice of Appeal was inordinate and the Appellant was guilty of laches. In his averment, there was no justifiable reason offered by the Appellant as the Appellant did not disclose and or explain to the court the circumstances under which he was indisposed and as such it was no reason enough to move the court to enlarge time to have the Notice of Appeal deemed as filed. He asserted that by filing the Notice of appeal out of time before seeking extension of time, and subsequently seeking the Court to extend time and recognize such ‘an appeal’, was tantamount to moving the Court to remedy an illegality.
15.At the hearing of this appeal, Learned Senior Counsel Prof. Ojienda and Ms. Awuor relied on their written submissions filed on which they briefly highlighted. According to them, the Appellant did not seek leave of the Court to file the Notice of Appeal out of time. Based on the decision of the Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & Others (2014) eKLR, it was submitted that the filing a timely Notice of Appeal is a jurisdictional prerequisite. Citing the decision of the Supreme Court in the case of James Lusweti Mukwe v Independent Electoral and Boundaries Commission & 2 Others [2019] eKLR, Learned Counsel urged us to declare proceedings a nullity since the Notice of Appeal had been filed out of time without leave.
16.According to the 1st Respondent, since the Appellant did not adhere to the timelines stipulated in the Election (Parliamentary and County Election Petition) Rules, 2017 and Rule 6(2) of the Court of Appeal Election (Parliamentary and County Election Rules) 2017, the Notice of Appeal was an afterthought and was made in bad faith to waste the court’s time. Reliance has been placed on the Supreme court judgment in Evans Odhiambo Kidero & 4 Others v Ferdinand Ndungu Waititu & 4 Others [2014] eKLR where the Supreme Court faulted this Court for admitting and determining an appeal filed out of time against the provisions of Section 85A(a) of the Elections Act as read with article 87(1) of the Constitution.
17.In support of the 1st Respondent’s Notice of Motion dated 5th April, 2023, the 2nd and 3rd Respondents, through Mr Munyithya and Mr Mokaya, similarly relied on their submissions dated11th April, 2023 which they briefly highlighted. They submitted that the Appellant having failed to adhere to Rule 6(2) of the Rules which prescribes the period within which a Notice of Appeal ought to be filed, the Appellant’s action of seeking extension of time was an illegality hence this Appeal was irregularly accorded a case number by the court’s registry. According to the said Respondents, the Notice of Appeal was filed 25 days after the expiry of the stipulated timeline without any justifiable reasons given by the Appellant. Relying on the decision in Christopher Odhiambo Karani v David Ouma Ochieng & 2 Others [2018] eKLR, it was submitted that the Appellant failed to explain or disclose to the court the circumstances under which he was indisposed.
18.The 2nd and 3rd Respondents asserted that the filed Record of Appeal is completely inconsequential as this court is bereft of jurisdiction due to the absence of a valid Notice of Appeal and cited in support Lesirma Simeon Saimanga vs IEBC & 2 Others [2018] eKLR and Lemanken Aramat v Harun Meitamei Lempaka & 2 Others [2014] eKLR for the proposition that the court cannot breathe life into a suit that is a nullity from the onset having been filed out of the time.In the 2nd and 3rd Respondents’ view, the Appellant failed to satisfy the conditions laid down to justify extension of time as no sufficient reasons for the inordinate delay were disclosed; the said Notice of Appeal was filed before seeking leave; and the deliberate failure to adhere to the strict timelines provided in the Rules. The net effect of such a blatant disregard of the law, it was submitted, is that the Notice of Appeal ought to be struck out with costs to the 2nd and 3rd Respondents.
19.On behalf of the Appellant, the 1st Respondent’s application was opposed on the basis of the fact that the Appellant had sought, vide the Motion dated 6th April, 2023, extension of time to file and serve a Notice of Appeal pursuant to Rule 17 of the Rules. It was urged that instead of striking out the Notice of Appeal, this Court should instead, deem as duly filed and served the said Notice of Appeal filed electronically on 27th March, 2023 and physically on 28th March, 2023 by invoking its discretionary power. According to the Appellant, the circumstances of this case are distinguishable from those of James Lusweti Mukwe v Independent Electoral and Boundaries Commission & 2 Others (supra) in that the Court of Appeal extended time to file a Notice of Appeal which was filed in the High Court and not in the Court of Appeal. In the Appellant’s view, sufficient reasons for the delay were given warranting the Court’s favourable exercise of discretion.
20.It was urged that the Record of Appeal was filed within 30 days prescribed under section 85A 1(a) of the Elections Act, 2011. According to the Appellant, Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & Others (supra) case is not applicable as that was a case that related to the extension of time to file the Petition of Appeal in the Supreme Court. Similarly, it was submitted, the case of Lemanken Aramet v Harun Meitamei Lempaka & 2 Others [2014] eKLR was not applicable to this case as it related to the issue of whether the entire proceedings in Superior Court and the Court of Appeal were void ab initio on account of the filing of the Election Petition in the Superior court after the expiry of the time allowed. The Appellant contended that the case of Apungu Arthur Kibira v IEBC & 2 Others [2018] eKLR was also inapplicable as the Notice of Appeal was filed before the Superior court and not the Court of Appeal as required by the 2017 Rules. The Appellant submitted that the timelines to hear the appeal will not be affected by placing reliance on the case of Andrew Toboso Anyangwa v Mwale Nicholas, Scott Tindi & 3 Others [2017] eKLR.
Analysis and Determination
21.We have considered the Notices of Motion dated 4th April, 2023 and 6th April, 2023 respectively, the affidavits filed in support of and in opposition thereto, the submissions both written and oral and the authorities relied upon. Rule 6(2) of the Court of Appeal Election (Parliamentary and County Election Rules) 2017 provides as follows:
22.In this case judgement was entered on 3rd March, 2023. Going by Rule 6(2) of the Rules, the Notice of Appeal ought to have been filed, at the latest, on 10th March, 2023. It was however not filed until 28th March, 2023. Though the Respondents have contended that the said Notice was filed 25 days after the expiry of the prescribed period, that may not necessarily be correct. After the delivery of the judgement, the Appellant had seven days within which he could file his Notice of Appeal. He could choose to do so on the first day or the last day. Therefore, the prescribed period lapsed 7 days after the delivery of the judgement sought to be appealed from. See Jackson Mutuku Ndetei v A. O. Bayusuf & Sons Ltd. Civil Application No. Nai. 231 of 2002. That however, does not change the fact that the Notice of Appeal was filed 25 days after the judgement as opposed to within 7 days from the date thereof.
23.This Court has, however, held that a delay, however, short ought to be explained and there is a plethora of decisions to the effect that a delay, even if only for one day, must be explained. It is true that the period of the delay is a factor to be considered. However, that is just one of the factors for consideration, along with others and it does not mean that on its own, it constitutes a basis for extension of time. While it may be that the Appellant has a good appeal, even good appeals must be filed within the prescribed periods and when that is not done, some explanation must be given for the delay. See Reliance Bank Limited (In Liquidation) v Grandways Ventures Ltd Others Civil Application No. Nai. 118 of 2007.
24.Whereas it may be argued that adopting such a stand is too restrictive when it comes to exercise of discretion, it must be appreciated that once the compliance with the rules is relaxed and subjective to vague considerations, without clear legal parameters being set as to how discretion is to be exercised, rules of procedure are bound to be rendered meaningless. When, for example non-compliance is excused on the grounds of short delay, without explanation, the doors for the whimsical exercise of discretion creeps in and with that the floodgates of mischief are thrown wide open. Without rules of practice and procedure the application and enforcement of the law and the administration of justice would be chaotic and impossible and their absence or non-adherence would lead to uncertainty of the law and total confusion since laws serve a purpose and they enhance the rule of law. That position was appreciated by this Court in Onjula Enterprises Ltd vs. Sumaria [1986] KLR 651, where it was held that:
25.The importance of the Notice of Appeal and the timelines appertaining to its filing and service was emphasized by the Supreme Court in Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others [2019] eKLR where that Court expressed itself as follows:
26.This Court in Sukwinder Singh Jutley v. Prudential Association Co. of Kenya Ltd & Another Civil Appeal (Application) No. 62 of 2004 stressed that:
27.Compliance with timelines is even more critical when the dispute before the Court relates to general elections. In such disputes the Court must always keep in mind that being public law litigation, it is not just the interests of the protagonists that are in focus. General elections transcend the interests of the parties before the Court as their outcome do affect the electorate who are keen to know, within the shortest time possible their representative to whom they have delegated their sovereignty pursuant to article 1(3) of the Constitution. Governors as the Counties’ Chief Executive Officer have at their disposal, the budgetary allocations and it is only fair and just that the person entrusted with the management of such allocation of taxpayers’ money be the one that the electorates have actually entrusted with the task of doing so. Accordingly, such determinations ought to be made as soon as practically possible without unnecessary delays. Recognising this, the Supreme Court in in Lemanken Aramat v Harun Meitamei Lempaka & 2 others [2014] eKLR held that:
28.Similarly, the Supreme Court, in Mary Wambui Munene v. Peter Gichuki King’ara & 2 Others SC Petition No. 7 of 2014, while annulling the proceedings of the High Court and Court of Appeal in an election petition that had been filed outside the time-frame prescribed in article 87(2) of the Constitution, stated as follows:
29.This therefore explains the strict interpretations of the electoral dispute resolution timelines which are cast in stone by the Constitution of Kenya, 2010 and Acts of Parliament, particularly the Elections Act(hereinafter referred to as “the Act”). While article 87(1) of the Constitution donates to Parliament the power to enact legislation to establish mechanisms for timely settling of electoral disputes, article 87(2) thereof provides that:
30.Parliament carried out its duty under article 87(1) in enacting the Elections Act which also concerns itself with the question of time. The Act, in section 75(1)(2) provides that a question as to validity of an election of a county governor shall be heard and determined within 6 months of the date of lodging the petition while in section 76(1)(a) it provides that a question as to validity of an election shall be filed within 28 days after the declaration of results. Section 85A of the same Act provides that an appeal of the decision of the High Court concerning the membership of the National Assembly, Senate or the office of county governor shall be filed within 30 days of the decision of the High Court and heard within 6 months. What comes out from the above provisions is that an election dispute before an election court should ideally be fully determined within a year, that is 6 months before the trial court and another 6 months before the appellate court.
31.The seeming obsession with timelines is historical and is a reflection of the country’s rather unfortunate history of election dispute resolution before the promulgation of the Constitution 2010. According to the Supreme Court in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 3 Others [2014] eKLR, this history is marked by instances where election disputes were never resolved and where resolved the decisions were ineffectual decisions because of the delay in making them. The Court added that it was not unheard of for some election disputes within one election cycle to spill over to the next election cycle thereby rendering their outcome pyrrhic. The Court explained that:
32.Whereas in ordinary civil litigation the timelines are prescribed by subsidiary legislation, in election disputes timelines are central to their resolution and are accordingly prescribed by the Constitution or Acts of Parliament. It is therefore our view that where the timelines are prescribed by the Constitution or Acts of Parliament, time is a matter of substantive law as opposed to being procedural law where the timelines are prescribed by subsidiary legislation. As a result, this Court in Ferdinand Ndung’u Waititu v Independent Electoral & Boundaries Commission [IEBC] & 8 others [2013] eKLR emphasised that:
33.However, where the timelines are set out under subsidiary legislation or imposed by the court, the courts when exercising their discretion to extend the timelines are required to consider the overarching constitutional and statutory timelines that cannot be extended. This is because the Elections Act is not an ordinary statute. It was enacted by Parliament pursuant to a constitutional command being Article 87(1) and is therefore a normative derivative of the Constitution.
34.In Gatirau Peter Munya v. Dickson Mwenda Kithinji & 3 Others [2014] eKLR., the Supreme Court clearly established the constitutional genealogy of Section 85A of the Elections Act, when it declared that the same was “neither a legislative accident nor a routine legal prescription. “Section 85A”, the Court affirmed, “is a product of a constitutional scheme requiring electoral disputes to be settled in a timely fashion.” This means in interpreting the provisions of the Act the principles and values underpinning elections as prescribed in the Constitution must be kept in mind. Therefore, when considering the statutory timelines, one has to also consider the constitutional principle of timely resolution of election disputes under article 87(1). This is what informs the elevation of the status of the statutory timelines in the Act since its provisions are meant to mirror the said constitutional principle. It follows that the consequence is that the failure to adhere to these timelines is incurable, not even article 159(2)(d) can remedy it. This is our understanding of the decision in Lemanken Aramat v Harun Meitamei Lempaka & 2 others (supra) where the Supreme Court stressed that:
35.It therefore follows that adherence to timelines in election disputes go to the jurisdiction of an election court since an election court’s jurisdiction can only be engaged within a set timeline and can only remain engaged for a set timeline. The centrality of the timelines in election disputes was the subject of the Supreme Court decision in Martha Wangari Karua v Independent Electoral and Boundaries Commission & 3 others [2019] eKLR. In that case the Supreme Court held that where a petition has been filed before the High Court sitting as an election court, it must be determined within 6 months without exception and that even where an appeal is filed and the matter remitted to the High Court, the High Court must still ensure that its determination is made within the prescribed 6 months window. The Supreme Court therefore found that this Court’s decision remitting the matter back to the High Court for hearing was an act in futility. In arriving at the said decision the Supreme Court arrived at the said decision not without sympathy to the petitioner who "without any fault of her own, has been locked out of the seat of justice".
36.However, the Appellant, Martha Wangari Karua, took the matter to the East African Court of Justice. In its decision made in Reference No. 20 of 2019 - Martha Wangari Karua vs The Attorney General of the Republic of Kenya. The First Instance Court found fault with the Supreme Court’s view that the this Court ‘should have decided to terminate the matter at that stage, well aware that any substantive determination of the petition by the High Court would been an exercise in futility.’ The Court found this statement on futility to violate the applicant’s right to access justice, including exhausting her right of appeal and denoted a recommendation to courts to disregard their duty to administer justice purely because in their estimation, to do so would be “an exercise in futility.” The Court therefore awarded the Applicant USD 25,000 in damages. Aggrieved by this decision the Attorney General of the Republic of Kenya preferred an appeal to the Appellate Division of the East African Court of Justice and in Appeal No. 4 of 2021 – Attorney General of the Republic of Kenya v Martha Wangari Karua & 2 Others. That appeal was however found unmerited and was dismissed, the Court upholding the decision of the Court of First Instance.
37.Rule 17 of the Rules, however grants the Court the power to extend or reduce the timelines prescribed by those Rules, for sufficient reason, and upon such terms and conditions it may deem just and expedient. This was explained by the Supreme Court in Lemanken Aramat v Harun Meitamei Lempaka & 2 Others (supra) at paragraph123 that:
38.We have set out to explain the centrality of timelines in election disputes to show that even where the timelines are prescribed by subsidiary legislation, in election matters, the Court will adopt a more restrictive approach as opposed to ordinary civil cases since the delays in taking steps may impact on the adherence to the prescribed constitutional and statutory timelines. This is captured in Rule 5 of which states that:
39.In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others, (supra), the Supreme Court laid out the following as the general under-lying principles that a Court should consider in exercise of such discretion:
40.Guided by the above principles we hold that what may ordinarily amount to sufficient reason for the purposes of extension of time in purely civil disputes may not necessarily meet the same threshold when it comes to election matters.The Supreme Court, while affirming this position expressed itself in Moses Masika Wetangula v Musikari Nazi Kombo & 2 others, S.C Pet. 12 of 2014; [2015] eKLR at paragraph 157 as follows:
41.In this case, the decision sought to be appealed against was, as already stated, rendered on 3rd March, 2023. Rule 6(2) of the Rules required the Appellant to file the Notice of Appeal within 7 days, the last day being 10th March, 2023. It is not disputed that the said Notice was filed electronically on 27th March, 2023 and physically on 28th March, 2023 which was clearly out of time. The reasons given by the Appellant are that from 4th March, 2023 to 12th March, 2023 he was indisposed and had to take some time to rest and recover hence was unable to meet his advocates on record with a view of understanding the court’s judgment to enable him decide whether or not to appeal. However, he has not disclosed the nature of his indisposition.
42.The Appellant ought to have given some material on the basis upon which the Court could decide whether his indisposition was such that he was unable to instruct his advocates. Was he, for example, so indisposed that unable to communicate?Was he bedridden? Was he admitted in an institution with no access to communication network? In the absence of disclosure of the relevant material, we are left to speculate as to the nature of the indisposition.. In this age and era there are several mediums of communication, and one does not have to meet his advocate physically in order to be briefed on the outcome of the proceedings and to give further instructions. Even in ordinary civil appeals, this Court appreciates that a Notice of Appeal is a simple thing that is routinely filed. See Meghji Velji Chhaya v Attorney General & 3 Others Civil Application No. Nai. 136 of 1996.
43.The Appellant further averred that he was unable to meet his advocates from 13th March, 2023 to 23rd March, 2023 due to conflicting schedules. We are not informed which schedules these were and why they had to be prioritised. While we appreciate that a Notice of Appeal in election matters is not as simple as in ordinary civil appeals, still one can give instruction to file the same remotely without the necessity of a physical meeting. Conflict in schedules, without more, does not therefore justify the failure to take a step in an election matter within the prescribed time. Even after the Appellant met his advocate on 24th March, 2023, a Thursday, it was not until Monday 27th March, 2023 that a step was taken. No explanation is given as to why the Notice could not be filed immediately taking into account the fact that the filing was electronic.
44.The Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others, (supra), held that:
45.The danger, in our respectful view, of one filing a document and seeking that it be legitimised by being deemed as properly filed is that such applications tend to tie the Court’s hands since the Court is then left with very little option considering that the document has already been filed and there is no application seeking that it be expunged from the record or struck out. We must however appreciate that there may be situations where a wording of a legal provision permits such deeming. For example, Section 79G of the Civil Procedure Act provides that:
46.This provision was interpreted in Mugo & Others v Wanjiru & Anor [1970] EA 482 where it was held that:
47.In this case however, the Rules talk of the power to extend or reduce the timelines. It does not talk of deeming documents duly filed or admitting documents filed out of time. We therefore agree, as we are bound to do, that where timelines are prescribed and the law requires an Applicant to seek extension of time the same if not filed within the prescribed time, it would be an abuse of the process to file the document and then seek to have the same regularised. In the case before us, the Appellant however seeks to have his Notice of Appeal which was already filed, albeit irregularly, before the application was made regularised. Based on the decision of the Supreme Court cited above, such course is unavailable to him and is unacceptable.
48.For the reasons of the failure by the Appellant to sufficiently explain the delay in filing the Notice of Appeal within the prescribed time as well as the fact of filing the Notice of Appeal before the time is extended to do so, we find that the Notice of Appeal was not properly filed and, as held by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others (supra), it is a nullity.
49.It is now trite that this Court becomes seized of a matter only upon the filing of a Notice of Appeal or the Appeal. This was stated in Safaricom Limited v Ocean View Beach Hotel Limited & 2 others [2010] eKLR where it was held that:
50.The Supreme Court was more succinct in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others, (supra), where it held that:
51.As we have found that the Notice of Appeal filed herein is a nullity having been filed before the order for extension of time was sought and granted, it follows that no subsequently document filed pursuant to the said Notice of Appeal can survive. As was held by this Court in Association of Member Episcopal Conference in East Africa (Amecea) v Alfred Roman T/A Romani Architects & Others Civil Appeal (Application) No. 22 of 2001, while citing Macfoy v United Africa Co. Ltd [1961] 2 All ER 1169 at 1172 that:
52.Based on our finding above as regards need to seek extension of time before filing the Notice of Appeal, it follows that the 1st Respondent’s Notice of Motion dated and filed on 6th April, 2023 seeking extension of time for filing and serving the already filed and served Notice of Appeal is misconceived. It is dismissed. In the premises, we allow the 1st Respondent’s Notice of Motion dated 4th April, 2023 and strike out the Appellant’s Notice of Appeal filed herein on 28th March, 2023 together with this Appeal.
53.In light of our finding hereinabove it is no longer necessary nor prudent that we should enter into a discourse on the merits of the appeal.
54.We award the costs to the 1st Respondent.
55.It is so ordered.
DATED AND DELIVERED AT MOMBASA THIS 7TH DAY OF JULY, 2023.S. GATEMBU KAIRU, FCIArb…………………………JUDGE OF APPEALP. NYAMWEYA…………………………JUDGE OF APPEALG.V ODUNGA………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR