Mohamed v Independent Electoral and Boundaries Commission & 4 others (Election Petition Appeal (Application) E010 of 2023) [2024] KECA 1933 (KLR) (20 December 2024) (Ruling)
Neutral citation:
[2024] KECA 1933 (KLR)
Republic of Kenya
Election Petition Appeal (Application) E010 of 2023
M Ngugi, JA
December 20, 2024
Between
Abdikadir Hussein Mohamed
Applicant
and
Independent Electoral and Boundaries Commission
1st Respondent
Farah Ibrahim, County Returning Officerwajir County
2nd Respondent
Abass Ibrahim Kafow
3rd Respondent
Mohamed Ibrahim Sugow
4th Respondent
Abdikadir Hussein Mohamed
5th Respondent
(Being an application for extension of time to file a reference from a taxation in Election Petition Appeal No. E010 of 2023)
Ruling
1.In the application dated 4th September, 2024, the applicant, Abdikadir Hussein Mohamed, seeks extension of time and leave to file a reference out of time. He further seeks orders that the findings and ruling of Hon. J.N. Wambilyanga in Election Petition Appeal No E010 of 2023 with regard to the 3rd respondent’s bill of costs dated 30th August, 2023 awarding the 3rd respondent a sum of Ksh 1,096,672.50 be set aside or varied; and that the bill of costs dated 30th August 2023 be taxed afresh inter partes.
2.Brought under Rule 4 and 117 of the Court of Appeal Rules, the application is based on the grounds set out on its face and is supported by an affidavit sworn by Abdikadir Hussein Mohamed on 4th September, 2024. The applicant avers that he had filed a party and party bill of costs seeking Kshs. 20,500,000 against the respondents, having been awarded costs from the judgment of the Court on 25th August 2023. He further avers that a ruling was delivered awarding him Kshs. 1,096,672.50; and that he was aggrieved by the award and wishes to file a reference against the decision of the taxing master. He contends that the amount in item 1 of the bill of costs, allowed at Kshs. 1,000,000, was manifestly low, contrary to the law and principle and should be re-taxed afresh.
3.The applicant asserts that rule 4 grants this Court the power to extend time within which to file a reference; that in considering whether or not to allow an application to extend time, the Court must consider whether there is an explanation for the delay; that the delay in this case was caused by the long duration taken by the applicant to give instructions to file the reference. The applicant avers that at the time he was given a copy of the ruling, he was indisposed, discharging his constitutional mandate as the Member of Parliament for Lagdera Constituency, and also handling serious personal issues, and he was therefore unable to give instructions on time. The applicant avers that the intended reference is arguable and with high chances of success; that no prejudice will befall the respondents if the order sought is granted; and it is in the interests of justice that the application be allowed. The applicant has not filed submissions in support of his application, and there is no response from the respondents in opposition to the application.
4.I have considered the application, the grounds it is based upon and the affidavit in support. The applicant seeks extension of time to file a reference against the ruling of the Deputy Registrar dated 27th March 2024. Rule 4 of this Court’s Rules under which this application is brought provides that:4.The Court may, on such terms as may be just, by order, extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.
5.The sole issue for determination is whether I should exercise discretion vested in the Court by rule 4 to grant the applicant extension of time as prayed. The factors to be considered in determining whether to exercise discretion in favour of a party are well settled. The Court is required to consider, among other factors, the period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, and the degree of prejudice to the respondent if the application is granted-see Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 and Fakir Mohammed v Joseph Mugambi & 2 Other [2005] eKLR.
6.Rule 117 of the Rules of this Court governs the filing of references from decisions of the Registrar on taxation. Of relevance for present purposes are Rules 117(1) and (4), which provide that:
117.(1)A person who is dissatisfied with a decision of the Registrar in his or her capacity as taxing officer may require any matter of law or principle to be referred to a judge for the judge’s decision and the judge shall determine the matter as the justice of the case may require.…(4)An application for a reference may be made to the Registrar informally at the time of taxation or in writing within seven days thereafter. (Emphasis added)
7.The ruling on taxation with respect to which the applicant seeks to file a reference was rendered on 27th March 2024. The applicant ought to have applied informally for a reference at the time the ruling was delivered, or in writing within seven (7) days thereof, that is on or before 3rd of April, 2024. The present application, dated 4th September 2024, was filed five months later. The reason that the applicant advances for the delay is the long duration that he took to instruct his counsel, a duration that he attributes, variously, to his being indisposed; being engaged in constitutional duties of serving as a Member of Parliament for Lagdera Constituency; and being engaged in serious personal issues, and he could therefore not give instructions to file the reference on time.
8.Given the nature of this matter and the time limited by the Rules for filing a reference, I find that the delay of five monts-20 weeks- while a party has a week within which to file a reference, to be inordinate. Do the reasons advanced for the delay excuse it? In Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR this Court observed that:
9.The reasons advanced for the delay, in my view, are not satisfactory. That a party truly aggrieved by a ruling on a taxation can be so engrossed in personal issues and constituency matters that he is unable, for five months, to instruct counsel with respect to a reference from a taxation is beyond belief. The application appears to have been an afterthought, and is undeserving of the exercise of discretion in favour of the applicant.
10.Having reached this conclusion, I need not consider the other factors under rule 4. Accordingly, I find the application dated 4th September, 2024 to be devoid of merit. It is hereby dismissed, but with no order as to costs.
DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2024.MUMBI NGUGI.................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.