Kenya Law Weekly Issue 025/22-23

The ownership of land whose title was not acquired regularly is not protected under article 40 of the Constitution on the protection of right to property

Headnote: The appellant’s grievance was that the County Government of Mombasa, forcefully entered the suit property registered to the appellant and demolished the entire perimeter wall facing the beachfront. The court also held that where the registered proprietor’s root title was under challenge, the registered proprietor must prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance. The court also highlighted the procedure for the allocation of unalienated Government land. The court finally held that as the 1^st registered owner did not acquire the title regularly, the ownership of the suit property by the appellant thereafter could not therefore be protected under article 40 of the Constitution and the appellant could not benefit from the doctrine of bona fide purchaser.

Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment)
Neutral citation: [2023] KESC 30 (KLR)
PM Mwilu, DCJ & V-P, SC Wanjala, NS Ndungu, I Lenaola & W Ouko, SCJJ
April 21, 2023
Reported by Kakai Toili
Download the Decision

Constitutional Law – rights and fundamental freedoms – enforcement of rights and fundamental freedoms – right to property - whether the right to property under article 40 of the Constitution extended to property that had been found to have been unlawfully acquired - Constitution of Kenya, 2010, article 40.
Land Law – ownership of land – proof of ownership of land - whether being in possession of the instrument of title was sufficient proof of ownership of land where the registered proprietor’s root title was under challenge.
Land Law – allocation of land - allocation of unalienated land - what was the procedure for the allocation of unalienated land.
Devolution – intergovernmental disputes – nature of intergovernmental disputes - what were the factors to consider in determining what amounted to an intergovernmental dispute.
Civil Practice and Procedure – appeals – appeals to the Supreme Court - appeals as of right in a matter involving the interpretation or application of the Constitution - what were the limits of the Supreme Court’s jurisdiction under article 163(4)(a) of the Constitution on appeals as of right in a matter involving the interpretation or application of the Constitution - Constitution of Kenya, 2010, article 163(4)(a).
Jurisdiction – jurisdiction of the Supreme Court – jurisdiction to determine issues which were not articulated in trial courts - whether the Supreme Court had the jurisdiction to determine an issue which was not articulated at the trial court but only at the appellate court - Constitution of Kenya, 2010, article 163(4)(a).
Civil Practice and Procedure – doctrine of res judicata - nature of the doctrine of res judicata - what were the elements to be proven before a court could determine that a matter was res judicata - Civil Procedure Act, Cap 21, section 7.
Precedent – precedents from courts of concurring jurisdiction - binding nature of precedents on courts of concurring jurisdiction – whether decisions made by courts of concurrent jurisdiction made in rem were binding on courts of equal jurisdiction.
Words and Phrases- bona fide purchaser – definition of bona fide purchaser – one who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims, or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims - Black’s Law Dictionary 9^th Edition.

Brief facts:
The appellant’s grievance was that on various dates in September, 2017, the 1^st respondent, County Government of Mombasa, without prior notice forcefully entered the suit property registered to the appellant and demolished the entire perimeter wall facing the beachfront. The 1^st respondent claimed that the entry and demolition was an enforcement action to create a thoroughfare to the beach as the suit property was public land and not private. Prior to the filing of the petition, a suit had been filed and determined in favour of the appellant in HCCC. No. 131 of 2011, Elizabeth Karangari Githunguri v Dina Management Limited which the appellant averred, settled the issues concerning the ownership and validity of title over the suit property and had conclusively addressed the issue whether there was a public road through the suit property.
Aggrieved by the 1^st respondent’s actions, the appellant filed a petition at the Environment and Land Court (ELC Petition No. 8 of 2017) against the 1^st respondent and sought among other orders; declarations that the 1^st respondent’s actions were in violation of its rights under article 40, 27(1) and (2), 29, 47(1) and (2) of the Constitution of Kenya, 2010 (the Constitution); and a permanent injunction against the 1^st respondent to restrain it from interfering with the suit property. The 1^st respondent filed a separate petition (ELC Petition No. 12 of 2017) against the appellant and the 2^nd – 6^th respondents wherein it sought among other declarations; that the suit property was public land; and that the subsequent acquisition by the appellant was from inception null and void ab initio The two petitions, ELC Petition No. 8 and 12 of 2017, were consolidated.
The trial court determined that: the alienation of the suit property was unprocedural and unlawful for lack of an approved part development plan (PDP) from the Director of Physical Planning and Central/Regional Authority in compliance with the provisions of the repealed Land Planning Act, Cap. 303; there existed an access road through the open space to the sea, which was later blocked by the allotment of the suit property; the 1^st respondent acted within the law in removing the wall which blocked the access road; the 1^st respondent’s suit was not res judicata; the 1^st respondent’s suit was not time barred as it related to constitutional violations of a continuing nature; and the appellant could not be protected as an innocent purchaser without notice as it failed to demonstrate that it was diligent before purchasing the suit property.
Aggrieved by the judgment of the trial court, the appellant filed an appeal at the Court of Appeal and the 2^nd to 6^th respondents filed a cross appeal challenging the court’s jurisdiction on the grounds that the dispute between the 1^st respondent and the National Government, to wit, Ministry of Lands and Physical Planning, the Chief Land Registrar, the Land Registrar, the Director of Survey, and the Director Physical Planning was inter-governmental in nature and hence contrary to articles 6, 159(c) and 189(3) and (4) of the Constitution as read with sections 30 to 35 of the Intergovernmental Relations Act No.2 of 2012 (IGR Act). The appellate court dismissed the appeal and the cross appeal and affirmed the trial court’s decision. Aggrieved, the appellant filed the instant appeal.

Issues:

Whether the right to property under article 40 of the Constitution extended to property that had been found to have been unlawfully acquired.
Whether being in possession of the instrument of title was sufficient proof of ownership of land where the registered proprietor’s root title was under challenge.
What was the procedure for the allocation of unalienated land?
What were the factors to consider in determining what amounted to an intergovernmental dispute?
What were the limits of the Supreme Court’s jurisdiction under article 163(4)(a) of the Constitution on appeals as of right in a matter involving the interpretation or application of the Constitution ?
Whether the Supreme Court had the jurisdiction to determine an issue which was not articulated at the trial court but only at the appellate court.
What was the nature of the doctrine of res judicata ?
What were the elements to be proven before a court could determine that a matter was res judicata?
Whether decisions made by courts of concurrent jurisdiction made in rem were binding on courts of equal jurisdiction .

Relevant provisions of the law
Constitution of Kenya, 2010
Article 163
(4) Appeals shall lie from the Court of Appeal to the Supreme Court -
a) As of right in any case involving the interpretation or application of this Constitution.

Held

The appellant’s notice of appeal dated June 16, 2021 indicated that it was dissatisfied with the decision of the Court of Appeal and intended to appeal to the Supreme Court against the whole of the said decision. It was for that reason, that the appellant in its prayers, sought to have the court set aside in its entirety the judgment of the Court of Appeal. A party had the liberty to appeal against the whole decision of the Court of Appeal to the court, however, it must be within the confines of the law, in the instant case, article 163(4)(a) of the Constitution.
The appellant electronically filed its record of appeal within the stipulated time under rule 12(1) of the Supreme Court Rules and submitted the hard copy thereof on July 19, 2021. The record of appeal, however, did not contain the signed and stamped notice of appeal by the Registrar of the Court of Appeal, Mombasa. Nevertheless, the appellant subsequently filed an application dated October 21, 2021 seeking leave to file a supplementary record of appeal which solely contained the signed and stamped notice of appeal. That application was allowed, the notice of appeal was properly on record.
A court’s jurisdiction emanated from either the Constitution or legislation or both. The limits of the court’s jurisdiction under article 163(4)(a) of the Constitution were as follows:
- The jurisdiction revered judicial hierarchy and the constitutional issues raised on appeal before the Supreme Court must have been first raised and determined by the trial court in the first instance with a further determination on the same issues on appeal at the Court of Appeal.
- The jurisdiction was discretionary in nature at the instance of the court. It did not guarantee a blanket route to appeal. A party had to categorically state to the satisfaction of the court and with precision those aspects/ issues of his matter which in his opinion fell for determination on appeal in the Supreme Court as of right. It was not enough for one to generally plead that his case involved issues of constitutional interpretation and application.
- A mere allegation(s) of constitutional violations or citation of constitutional provisions, or issues on appeal which involved little or nothing to do with the application or interpretation of the Constitution did not bring an appeal within the jurisdiction of the Supreme Court under article 163(4)(a).
- Only cardinal issues of constitutional law or of jurisprudential moment, and legal issues founded on cogent constitutional controversies deserved the further input of the Supreme Court under article 163(4)(a).
- Challenges of findings or conclusions on matters of fact by the trial court of competent jurisdiction after receiving, testing and evaluation of evidence did not bring up an appeal within the ambit of article 163(4)(a).
The court had no jurisdiction to revisit the factual findings of the superior courts, and the court was limited to its jurisdiction under article 163(4)(a) of the Constitution.
The interpretation or application of articles 27(1) and 47 of the Constitution having not been a question for determination before the superior courts, the instant court would have no jurisdiction to entertain an appeal brought under article 163(4)(a) of the Constitution. Accordingly, the instant court had no jurisdiction to establish whether the 1^st respondent’s enforcement actions violated the appellant’s right to property (article 40), right to equal protection before the law (article 27(1)) and the right to fair administrative action under article 47 of the Constitution as that would amount to converting the court into a court of first instance. The appellant was no more than seeking compensation and/or damages both liquidated and special, matters that were not in the purview of consideration by the instant court.
Whether the dispute was intergovernmental in nature was a jurisdictional issue. Indeed, jurisdiction was a pertinent question for determination. A court was bound to always satisfy itself whether or not it had jurisdiction to hear and determine a matter before it. Whereas the issue of intergovernmental dispute was not articulated at the trial court but only at the appellate court , the inherent jurisdiction of the instant court to right jurisdictional wrongs committed by the superior courts in executing their constitutional mandates necessitated that the instant court should assume jurisdiction and interrogate those alleged wrongs. The court had jurisdiction to entertain the consideration and determination of that issue under article 163(4)(a) of the Constitution.
Not all the four grounds set out by the appellant satisfied the court’s jurisdictional threshold under article 163(4)(a) of the Constitution. The appeal correctly invoked the court’s jurisdiction to the extent of determining only three questions:
1. Whether the appellant’s rights under article 27(1) and 50(1) of the Constitution were violated by the court’s application of the doctrine of res judicata in the alternative issue estoppel;
2. whether the appellate court’s interpretation of bona fide purchaser amounted to a violation of the appellant’s right to property under article 40 of the Constitution; and
3. whether the suit amounted to an inter-governmental dispute under article 189(3) of the Constitution, and the Intergovernmental Relations Act No.2 of 2012.
The doctrine of res judicata was founded on public policy and was aimed at achieving two objectives namely, that there must be finality to litigation and that the individual should not be harassed twice with the same account of litigation. The doctrine of res judicata may be pleaded by way of estoppel so that where a judgment had been delivered, subsequent proceedings were estopped. Where res judicata was pleaded by way of estoppel to an entire cause of action, rather than to a single matter in issue, it amounted to an allegation that all the legal rights and obligations of the parties were concluded by the earlier judgment, which may have involved the determination of questions of law as well as findings of fact, that was a form of action estoppel. Res judicata, was embodied in section 7 of the Civil Procedure Act.
The elements to be proven before a court may arrive at the conclusion that a matter was res judicata were to be conjunctive rather than disjunctive before a suit or an issue was to be deemed res judicata on account of a former suit. It must be demonstrated that there was a former judgment which was final, it was on merit and by a court having jurisdiction and had identical parties, subject and cause of action.
The issues for determination in ELC Petition 12 of 2017 were not substantially in issue in HCCC No. 131 of 2011. Further, the 2^nd to 6^th respondents were not parties in HCCC No. 131 of 2011 and the court’s findings were inconclusive due to the absence of the State organs, specifically, the Registrar of Titles to enable the court make a determination. The parties in ELC Petition 12 of 2017 were different from those in HCCC No. 131 of 2011 save for the appellant. Therefore, ELC Petition 12 of 2017 was not res judicata as the elements to make such a finding had not been met. The appellant’s rights to equal protection under article 27(1) and the right to fair hearing under article 50(1) of the Constitution were therefore not violated by the appellate court’s interpretation of the doctrine of res judicata in the matter.
The decisions in HCCC No. 131 of 2011 and ELC Petition 12 of 2017 were made by courts of concurrent jurisdiction. Decisions made by courts of concurrent jurisdiction made in rem were not binding on courts of equal jurisdiction. The ideal scenario on stare decisis was for trial court judges to follow decisions of other judges of the same court unless there were compelling reasons to depart from the same. That was to ensure consistency, certainty, predictability, and sound judicial administration.
The IGR Act was the legislation passed pursuant to article 189 of the Constitution to establish a framework for consultation and cooperation between the National and County Governments, and amongst county governments, and to establish mechanisms for the resolution of intergovernmental disputes. The intention of article 189 was to have consultation and cooperation between the National and County Governments and have disputes resolved in a less acrimonious way. The two levels of Government were required to make every reasonable effort to settle any arising disputes.
There was no express definition of what amounted to an intergovernmental dispute under the IGR Act. Section 30 of the IGR Act merely defined a dispute as an intergovernmental dispute and that the dispute resolution mechanisms applied to disputes arising between the National Government and a county government or amongst county governments. From article 189 of the Constitution and section 30, the dispute must first be between the two levels of Government or between county governments. An intergovernmental dispute:
1. Must involve a specific disagreement concerning a matter of fact, law or denial of another.
2. Must be of a legal nature. That was a dispute capable of being the subject of a judicial proceeding.
3. Must be an intergovernmental one in that it involved various organs of State and arose from the exercise of powers of function assigned by the Constitution, a statute or an agreement or instrument entered into pursuant to the Constitution or a statute.
4. The dispute may not be subject to any of the previously enumerated exceptions.
The main issue for determination before the trial court was not a disagreement between the County Government and the National Government agencies, but whether the ownership of the suit property was public or private. The suit property was central to the dispute, necessitating the basis for the consolidation of the Petition 8 of 2017 and Petition 12 of 2017. Therefore, the question of the dispute being intergovernmental fell on the periphery and was incidental to the main issue in dispute. The mere fact that the 1^st respondent opted to file separate proceedings in response to that filed by the appellant did not change the nature of the proceedings. The issues and challenges to the ownership of the suit property would have still been introduced in response to the petition, even if by way of cross petition.
Where the registered proprietor’s root title was under challenge, it was not enough to dangle the instrument of title as proof of ownership. It was the instrument that was in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register.
Under the repealed Government Lands Act (GLA), a PDP must be drawn and approved by the Commissioner of Lands or the Minister for Lands before any un-alienated Government land could be allocated. After a PDP had been drawn, a letter of allotment based on the approved PDP was then issued to the allotees. It was only after the issuance of the letter of allotment, and the compliance of the terms therein, that a cadastral survey could be conducted for the purpose of issuance of a certificate of lease.
There was no evidence produced of the letter to the Commissioner of Lands seeking allocation of the suit property by the first registered owner, and there was no PDP before the survey was done. The allocation of the suit property to the former President was irregular.
Before allocation of the unalienated Government Land, there ought to have been processes to be followed prior. Further, the court could not, on the basis of indefeasibility of title, sanction irregularities and illegalities in the allocation of public land. It was not enough for a party to state that they had a lease or title to the property.
The suit property was subsequently converted and the former President registered as owner and obtained a freehold title. Further, the suit property therein was within the then Mombasa municipality. Section 10 of the GLA was applicable. Being a town plot, within the jurisdiction of the 1^st respondent and its predecessor, it ought to have been an allocation for a lease for a term not exceeding 100 years.
The title or lease was an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title could not be held as indefeasible. The first allocation having been irregularly obtained, the former President had no valid legal interest which he could pass to Bawazir & Co. (1993) Ltd, who in turn could pass to the appellant.
Article 40 of the Constitution entitled every person to the right to property, subject to the limitations set out therein. Article 40(6) limited the rights as not extending them to any property that had been found to have been unlawfully acquired. As the 1^st registered owner did not acquire title regularly, the ownership of the suit property by the appellant thereafter could not therefore be protected under article 40. The root of the title having been challenged; the appellant could not benefit from the doctrine of bona fide purchaser.
The appellant’s title was not protected under article 40 the Constitution and the land automatically vested to the 1^st respondent pursuant to article 62(2) the Constitution. The suit property, by its very nature being a beach property, was always bound to be attractive and lucrative. The appellant ought to have been more cautious in undertaking its due diligence.
Generally, costs followed the event and they should not be used to punish the losing party, but to compensate the successful party for the trouble taken in prosecuting or defending a suit. As each party was pursuing an apparent genuine constitutional legitimate claim, and the appeal not having succeeded, there was no reason to burden any of them on the limited question of costs.

Appeal dismissed; each party to bear own costs.

Kenya Law Case Updates Issue 025/23-24
Case Summaries


CIVIL PRACTICE AND PROCEDURE	Principles to be considered in an application for certification of a matter as one of general public importance warranting an appeal to the Supreme Court Headnote: The application sought among others the review and setting aside of the Court of Appeal decision declining leave to appeal to the instant court. The instant court highlighted the principles governing applications for certification of matters as being of general public importance capable of appeal to the Supreme Court as enunciated by the court in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone. The court also explained the nature of a resulting trust. Munguti & 6 others v Zibu & 13 others (Application E009 of 2023) [2023] KESC 49 (KLR) (23 June 2023) (Ruling) Neutral citation: [2023] KESC 49 (KLR) PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, I Lenaola & W Ouko, SCJJ June 23, 2023 Reported by Kakai Toili Download the Decision *Civil Practice and Procedure* – appeals – appeals to the Supreme Court – appeals certified as involving matters being of general public importance - what were the principles to be considered in an application for certification of a matter as one of general public importance warranting an appeal to the Supreme Court - Constitution of Kenya, 2010, article 163(4)(b) *Land Law* – trusts – resulting trusts - what was the nature of a resulting trust. Brief facts: At the heart of the dispute between the parties was the question of ownership of certain assets in the form of immovable properties, money in the bank, and control and management of the 7th applicant. The assets were allegedly acquired using donor funds from the 2nd respondent and other donors; the 2nd respondent remitted funds to the 1st applicant to register the 7th applicant as well as to purchase land with a view to setting up a children’s home and drug addiction rescue and rehabilitation centre. The first two plots were registered in the name of the 7th applicant while the latter property in the name of the 1st applicant. The instant application sought among others the review and setting aside of the Court of Appeal decision declining leave to appeal to the instant court; the grant of leave of the court to file an appeal against the judgment of the Court of Appeal in Civil Appeal No 260 of 2018, Henry Muli & others v Cyrus Robert Sala Zibu & others; and the certification of their appeal as raising matters of general public importance. The applicants submitted that the Court of Appeal did not analyse each of the framed issues and consider the arguments advanced for certification, to the effect that the instant court needed to clarify the law. It was the applicants’ argument that the position relating to remedies available upon the finding of the existence of a trust was unsettled. Issue: What were the principles to be considered in an application for certification of a matter as one of general public importance warranting an appeal to the Supreme Court? What was the nature of a resulting trust? Read More.. Held: The principles governing applications for certification of matters as being of general public importance capable of appeal to the instant court as enunciated by the court in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone were; that the applicant must satisfy the court that the issue to be canvassed on appeal before the court was one the determination of which transcended the circumstances of the particular case, and had a significant bearing on the public interest; where a point of law was raised, that such a point was a substantial one the determination of which would have a significant bearing on the public interest; the question or questions of law must have arisen in the courts below and must have been the subject of judicial determination; that where the certification was occasioned by a state of uncertainty in the law arising from contradictory precedents, the court may either resolve the uncertainty or refer the matter to the Court of Appeal with appropriate directions; that mere apprehension of miscarriage of justice was not a proper basis for granting certification and the matter must still fall under article 163(4)(b) of the Constitution of Kenya, 2010 (the Constitution; that the applicant must identify and concisely set out the specific elements of general public importance which he or she attributed to the matter for certification; and that determinations of fact in contests between parties were not, by themselves, a basis for granting certification for an appeal before the court A resulting trust was a remedy imposed by equity where property was transferred under circumstances which suggested that the transferor did not intend to confer a beneficial interest upon the transferee. A resulting trust would automatically arise in favour of the person who advanced the purchase money and whether or not the property was registered in his name or that of another, was immaterial. The issues, as determined by the superior courts below, were settled. In Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others; SC Application No 3 (E008) of 2022; [2022] eKLR, the issue raised by applicants was whether it was open to the court to imply and import the doctrine of trust into land sale transactions and into shareholding of a company as to disentitle the registered holder of land or shares, respectively, obtained for valuable consideration without offending the constitutional right to property under article 40 of the Constitution and other statutory provisions. In the instant case, the 1st applicant was challenging the right to property with respect to a resulting trust having failed to present proof that he had purchased any of the plots with funds other than those from the 2nd respondent and his donor friends. The remedy available as a result of an implied trust was never an issue before the superior courts below. A declaration of the existence of a resulting trust was itself a remedy in an action like the instant one. No instance of state of uncertainty in the law arising from contradictory precedents on the issues raised had been pointed out. The questions presented in the instant application did not transcend the circumstances of the case. The issues in dispute arose from a private claim between the parties that resulted in a trust. There was no significant question of law that required further input from the court. All the applicants were asking the court to do, was to grant them another opportunity to have a third bite at the cherry by revisiting factual issues that had concurrently been resolved by the two courts below. The two courts below reached the conclusion that, in view of the relationship between the parties therein, an implied trust resulted; that decision being founded on pure evidence which pointed to the fact that the 1st appellant was attempting to reap where he did not sow by insisting to derive personal benefits from projects that were intended to benefit the less fortunate in the society. Being conclusions based on facts, the court was precluded from attempting to re-evaluate them. In the circumstances, there was no justification to disagree with the determination of the Court of Appeal that the application had not passed the threshold for the grant of leave to appeal to the instant court pursuant to article 163(4)(b) of the Constitution. Application dismissed; decision of the Court of Appeal delivered on February 3, 2023, declining leave to appeal to the instant court affirmed; costs of the application to be borne by the applicants.
CIVIL PRACTICE AND PROCEDURE	The Supreme Court deems as withdrawn a notice of appeal for default in filing an appeal within the prescribed timeline after filing the notice of appeal Headnote: The application sought for orders that the notice of appeal lodged by the 1st, 2nd and 3rd respondents at the Court of Appeal be deemed to have been withdrawn. The instant court noted that rule 38 of the Supreme Court Rules, 2020 stipulated that an appeal to the court shall be filed within 30 days of the date of filing the notice of appeal, where the appeal was as of right; or 30 days after the grant of certification, where such certification was required. The court further noted that the 1st, 2nd and 3rd respondents had defaulted in filing their appeal within the prescribed timeline after filing their notice of appeal. The court ordered that the notice of appeal be deemed to have been withdrawn. Maina v Macharia & 5 others (Application E035 of 2023) [2023] KESC 97 (KLR) (10 November 2023) (Ruling) Neutral citation: [2023] KESC 97 (KLR) Supreme Court of Kenya MK Koome, CJ, PM Mwilu, DCJ & V-P, MK Ibrahim, I Lenaola & W Ouko, SCJJ November 10, 2023 Reported by Kakai Toili Download the Decision *Civil Practice and Procedure* – appeals – appeals to the Supreme Court – timelines for filing an appeal to the Supreme Court - what was the effect of default in filing an appeal to the Supreme Court within the prescribed timeline after filing a notice of appeal without justification -Supreme Court Rules, 2020, rules 36 and 38. Brief facts: The application sought for orders that the notice of appeal lodged by the 1st, 2nd and 3rd respondents at the Court of Appeal regarding Court of Appeal at Nairobi Election Petition Appeals Nos E006, E005 and E009 of 2023 be deemed to have been withdrawn and that the 1st, 2nd and 3rd respondents be ordered to pay the costs relating to the notice of appeal and the costs of the application. The applicant contended that; his election as the Member of the National Assembly Starehe Constituency was challenged by the 1st, 2nd and 3rd respondents in the High Court and was dismissed thus leading to the 1st, 2nd and 3rd respondents filing election petition appeals at the Court of Appeal. The Court of Appeal dismissed the appeal following which the 1st, 2nd and 3rd respondents lodged a notice of appeal on August 8, 2023 but had not yet filed their petition and record of appeal before the instant court. The applicant submitted that the 1st, 2nd and 3rd respondents had failed to comply with rule 38 of the Supreme Court Rules, 2020 by not instituting their appeal within 30 days of the date of filing the notice of appeal where the appeal was as of right, which lapsed on September 7, 2023. The applicant further submitted that he was unaware of any application filed by the 1st, 2nd and 3rd respondents for certification of the intended appeal as a matter of general public importance and thus prayed that it would be in the interest of justice that the notice of appeal be formally deemed as withdrawn and he be awarded costs. Issue: What was the effect of default in filing an appeal to the Supreme Court within the prescribed timeline after filing a notice of appeal without justification? Read More.. Held: Rule 38 of the Supreme Court Rules, 2020 stipulated that an appeal to the court shall be filed within 30 days of the date of filing the notice of appeal, where the appeal was as of right; or 30 days after the grant of certification, where such certification was required. Rule 36(4) of the Supreme Court Rules, 2020 made it optional to file a notice of appeal either before or after certification in a matter of general public importance. The 1st, 2nd and 3rd respondents indicated their intention to invoke the court’s jurisdiction under article 163(4)(b) of the Constitution of Kenya, 2010 (the Constitution). That involved certifying their intended appeal as a matter of general public importance. Though they submitted that they filed their notice of appeal before obtaining certification rendering the application premature, the 1st, 2nd and 3rd respondents had not provided any evidence to support their assertion considering that the assertion was vehemently opposed on grounds that the application for certification was non-existent. The 1st, 2nd and 3rd respondents had defaulted in filing their appeal within the prescribed timeline after filing their notice of appeal. The 1st, 2nd, and 3rd respondents had also not provided any justification for the continued existence of the notice of appeal on the court’s record beyond the period permitted by rules 36 and 38 of the Supreme Court Rules. At any rate, if the 1st, 2nd and 3rd respondents pursued their application for certification before the Court of Appeal and succeeded, they had sufficient time to move the court under the relevant rule. Costs followed the event. Under rule 46(2) of the Supreme Court Rules, the party in default in instituting the appeal shall be liable to pay the costs arising. There was no reason to deny the respondents costs as prayed. Application allowed. Orders The notice of appeal dated August 8, 2023 lodged by the 1st, 2nd and 3rd respondents in the first instance at the Court of Appeal even date regarding Court of Appeal at Nairobi Election Petition Appeals Nos E006, E005 and E009 of 2023 was deemed to have been withdrawn. The 1st, 2nd and 3rd respondents to bear the costs hereof.

Kenya Law Weekly Issue 025/22-23

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