Supreme Court upholds Court of Appeal determination that the elections for Magarini Constituency were not conducted per the Constitution and the law
Headnote: The main issue arising was whether the Court of Appeal misapplied and misinterpreted the test for nullification of elections as provided by section 83 of the Election Act, when it nullified the elections for Member of the National Assembly, Magarini Constituency. The Supreme Court held that there was no error in the determination of the Court of Appeal that the 1st respondent met the standard of proof thereby discharging the burden of proof and had established that indeed there was non-compliance with the Constitution and the law or that the noted irregularities and illegalities did affect the final result, based on both limbs of Section 83 of the Elections Act.

Kombe v Karisa & 3 others (Petition E020 of 2023) [2024] KESC 25 (KLR) (31 May 2024) (Judgment)
Neutral citation: [2024] KESC 25 (KLR)
The Supreme Court of Kenya
MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola & W Ouko, SCJJ
May 31, 2024
Reported by Robai Nasike Sivikhe
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Jurisdiction – jurisdiction of the Supreme Court – scope of the jurisdiction of the Supreme Court – where a matter was considered to raise questions of constitutional interpretation and application – whether the appeal to the Supreme Court raised questions of constitutional interpretation and application that were canvassed in the High Court, and Court of Appeal, upon appeal – whether the matter on nullification of elections passed the jurisdictional test provided under the Constitution and could be determined by the Supreme Court – Constitution of Kenya, 2010, article 163 (4)
Election Law – free and fair elections – threshold to be met for elections to be considered free and fair – nullification of elections – test to be met before nullification of elections – test for nullification of election results as provided under section 83 of the Election Act – whether the test of nullification under section 83 of the Election Act was disjunctive instead of conjunctive – whether the Court of Appeal misapplied and misinterpreted the test for nullification of elections as provided by section 83 of the Election Act – Constitution of Kenya, 2010, articles 81 e (i) to (v) and 86 – Election Act, section 83
Evidence Law – standard and burden of proof – shifting of the evidentiary burden and standard of proof – what is the standard and burden of proof in election matters – when does the evidentiary burden of proof shift from the petitioner, in an election matter – whether the Court of Appeal misconstrued the standard and burden of proof applicable in election matters – Evidence Act, CAP 80, section 107

Brief Facts:
The appellant, the 1st and 4th respondents, were amongst other candidates who contested for the seat of Member of National Assembly, Magarini Constituency, Kilifi County in the general elections held on August 9, 2022, in which by a narrow margin of only 21 votes, the appellant was declared the duly elected Member of the National Assembly for Magarini Constituency with 11,946 votes ahead of his closest contender, the 1st respondent’s 11,925 votes. The 1st respondent petitioned the High Court challenging the outcome and declaration contending that there were grave errors, flaws, fraud, illegalities, and irregularities committed by the 2nd and 3rd respondents; and that the overall effect of those errors was that the exercise failed to secure a free, fair, and credible election and subdued the will of the people of Magarini Constituency.
The High Court ultimately concluded that the election for the Member of the National Assembly for Magarini Constituency was not conducted in accordance with the Constitution and the law. As a result, the election was declared null and void and the 2nd respondent was ordered to conduct a by-election per the law. The court awarded the 1st respondent costs capped at 1 million to be borne by the appellant.
The instant appeal arose from the judgment of the Court of Appeal upholding the determination of the High Court that the declaration by the 2nd and 3rd respondents of the appellant as the duly elected Member of the National Assembly for Magarini Constituency in the general elections of August 9, 2022, was invalid as the election was not conducted in accordance with the Constitution and the law. The appeal presented three main questions for the Supreme Court’s determination; whether the Supreme Court was clothed with jurisdiction to entertain the appeal; whether the Court of Appeal, in affirming the decision of the High Court misinterpreted section 83 of the Elections Act; and whether the Court of Appeal misapplied the standard and burden of proof.

Issues:
  1. Whether the appeal to the Supreme Court raised questions of constitutional interpretation and application that were canvassed in the High Court, and Court of Appeal, upon appeal .
  2. Whether the Court of Appeal misapplied and misinterpreted the test for nullification of elections as provided by section 83 of the Election Act .
  3. Whether the Court of Appeal misconstrued the standard and burden of proof applicable in election petitions .
Held:
  1. As a matter of practice, the Supreme Court before considering the merits of arguments in any appeal before it, must first ascertain if it had been properly moved. That was because jurisdiction was everything. The jurisdiction of a court could only flow from the Constitution and the applicable statutes. By defining in specific terms, the jurisdiction of the Supreme Court in article 163(4), the Constitution made it clear that the Supreme Court must not treat with levity any action or proceedings brought outside those limits because such an action would amount to an abuse of its process. Not every grievance from the decision of the Court of Appeal lies to the Supreme Court. An appeal from the decision of the Court of Appeal had to meet the test under article 163(4)(a) and (b) of the Constitution
  2. Whether or not the jurisdiction under article 163(4) of the Constitution had been properly invoked depended on either the nature of the pleadings, the nature of the proceedings or the relief claimed, or the decision of the Court of Appeal being appealed against, or in some instances, all four instances. It follows that a party relying on article 163(4)(a), must demonstrate that the grievance they had presented, concerned the application or interpretation of the Constitution. It was not the mere statement in the pleadings or submissions by a party that the appeal involves constitutional interpretation or application that clothes the Supreme Court with jurisdiction.
  3. At the heart of the instant dispute were the questions of: whether political rights guaranteed by article 38 of the Constitution for the citizens to freely express their will through the ballot were upheld in the election in question; whether the general principles for electoral system espoused in article 81 of the Constitution were adhered to; and whether there was compliance with article 86 of the Constitution that commanded the 2nd respondent to ensure a simple, accurate, verifiable, secure, accountable and transparent voting system, accurate and open counting, tabulation and prompt announcement of results. Then there was the question of whether the courts below properly interpreted and applied those two provisions of the Constitution as well as section 83 of the Elections Act to the facts presented by parties before them. In their respective analysis and assessment of the evidence on record; in determining the integrity of the election, both superior courts below applied the provisions of articles 81 and 86 of the Constitution.
  4. The Supreme Court was seized with jurisdiction to entertain the instant appeal under the provisions of article 163(4)(a) of the Constitution. The appeal passed the merit test for being heard and determined at the Supreme Court.
  5. Articles 81 (e) (i) to (v) and 86 of the Constitution, under which section 83 of the Election Act was anchored, formed the solid bedrock upon which Kenya’s electoral system was built. There could not be free and fair elections if the voting method used was not simple, accurate, transparent, or secure, and if the results were not verifiable. That was the irreducible threshold that all elections in the country must match. Any election conducted below that threshold would inevitably lead to nullification of the results.
  6. Under Section 83 of the Election Act, an election would not be nullified for non-compliance with any written law relating to that election if it appeared that:- the election was conducted in accordance with the principles laid down in the Constitution and in that written law; and the non-compliance did not substantially affect the result of the election. The test to be applied in section 83 was a disjunctive one and not a conjunctive one as urged by the appellant. Proof of either of the two limbs under section 83 of the Election Act was sufficient to nullify an election. The Court of Appeal whose judgment was the subject of the appeal properly found that the 1st respondent needed to prove either of the two limbs set by section 83.
  7. Section 107 of the Evidence Act casts the burden upon the party who desires the court to give judgment as to any right or liability to provide proof that indeed those facts exist as pleaded.
  8. A petitioner who sought the nullification of an election on account of non-conformity with the law or on the basis of irregularities must adduce cogent and credible evidence to prove those grounds to the satisfaction of the court. That was fixed at the onset of the trial and unless circumstances change, it remained unchanged.
  9. The legal and evidential burden of establishing the facts and contentions which will support a party’s case was static and remained constant through a trial with the plaintiff. However, depending on the effectiveness with which he or she discharges that, the evidential burden kept shifting and its position at any time was determined by answering the question as to who would lose if no further evidence were introduced.
  10. Once the Court was satisfied that the petitioner had adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifted to the respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground involved irregularities, that they did not affect the results of the election. While the petitioner bore an evidentiary burden to adduce ‘factual’ evidence to prove the allegations of breach, then the burden shifted and it behoved the respondent to adduce evidence to prove compliance with the law.
  11. In an allegation of an election offence or quasi-criminal conduct, the proof expected was beyond reasonable doubt. In any other case, the standard had been set at an intermediate level, higher than the balance of probabilities but lower than beyond reasonable doubt. The legal burden rested on the 1st respondent to establish that there were violations, omissions, malpractices, irregularities, and illegalities in the conduct of the election of the Member of the National Assembly for Magarini Constituency or that those infractions affected the outcome of the election. The evidentiary burden would shift to the 2nd and 3rd respondents to show the contrary, only after the 1st respondent had discharged the legal burden.
  12. As a second appellate court, the Supreme Court must treat with due deference the conclusions of fact reached by the trial court which had the initial opportunity to assess the evidence first hand and those of the first appellate court that independently analyzed and re-evaluated the evidence afresh by way of a re-trial before reaching its conclusion. An appellate court had loyalty to accept the findings of fact of the lower courts and resist the temptation to treat findings of fact as holdings of law or mixed findings of fact and law, unless it was apparent that, on the evidence, no reasonable court could have reached the conclusions under challenge. Only cardinal issues of law or of jurisprudential moment, based, for example on the application and interpretation of the Constitution would deserve the further input of the Supreme Court.
  13. petition which required the appellate Court to re-examine the probative value of the evidence tendered at the trial Court, or invited the Court to calibrate any such evidence, especially calling into question the credibility of witnesses, ought not to be admitted. Those principles struck a balance between the need for an appellate Court to proceed from a position of deference to the trial Judge and the trial record, on the one hand, and the trial Judge’s commitment to the highest standards of knowledge, technical competence, and probity in electoral-dispute adjudication, on the other hand.
  14. The Supreme Court would entertain a question of fact as though it was an issue of law only if it was satisfied that the conclusions arrived at by the trial Judge in an election petition in the High Court were based on ‘no evidence’, or that the conclusions were not supported by the facts or evidence on record, or that the conclusions were ‘so perverse’, or so illegal, that no reasonable tribunal would arrive at the same conclusion.
  15. The 1st appellate court did not misdirect itself as to the burden of proof. All it was concerned about was the standard of proof. The breaking of the seals of the ballot box at the tallying centre after the conclusion of voting, the recount and the correction of Form 35A, was not only contrary to the law and settled judicial pronouncements but was also unwarranted. The election officials did not meet the test of transparency and contravened the tenor and ratio decidendi in the Maina Kiai case, which decreed that results declared at the polling station were final because that was the true locus of the vote where the verification exercise was done.
  16. A win was a win and numbers were only one of its ingredients. The mere fact of a slim margin of votes could not per se lead to the necessary inference that the result of the winning candidate had been materially affected. The issue of margins in an election other than a Presidential election could bear only transient relevance and only where it was alleged that there were irregularities that affected the final result; that a narrow margin between the declared winner and the runner-up beckoned as a red flag where the results were contested on allegations of counting and tallying errors at specified polling stations; and that where a re-count, re-tally or scrutiny did not change the final result as to the gaining of votes by candidates, the percentage or margin of victory however narrow, was immaterial as a factor in the proper election-outcome.
  17. The trial court devoted considerable space to analyze the scrutiny report, though it was overturned by the Court of Appeal on certain aspects. For example, on the effect of unstamped counterfoils, the mixup of the names of two polling stations, Majenjeni instead of Mjanaheri, among others. The Court of Appeal explained how scrutiny was a vehicle to assist the court in verifying the allegations made by the parties to the petition which allegations themselves must be hinged on pleadings; that it was never intended to enable the Court to unearth new evidence on the basis of which the petition could be sustained.
  18. It would appear therefore that the report of the scrutiny did not yield the outcome expected by the 1st respondent when he sought it. That did not preclude him from presenting and relying on other pieces of evidence to illustrate that the election in question did not conform with the constitutional and legal imperatives. Indeed, the petition before the trial court raised several grounds. The prayer for scrutiny and reliance on the resultant report was but only one of them.
  19. The 1st respondent was able to prove on a balance of probabilities, non-compliance with the Constitution and electoral law in the manner the 2nd and 3rd respondents conducted the election, especially from the events at Mapimo Youth Polytechnic polling station 1 of 6, where there was unlawful reopening of the ballot box, alteration of forms without countersigning and a recount of votes in the absence of all the agents. There was an interchange of results at Mapimo Youth Polytechnic Polling Station 1 of 6; alterations of votes or wrong entries for Kayadagamra, Adimaye, Kinyaule Nursery School, Kibaoni Primary School Polling Station, Mekatili polling station, St. Peters Nursery School polling station and Chakama polling station.
  20. Rejected votes did not count in determining the winner. The trial court found that despite the numerous discrepancies in the rejected votes, the scrutiny exercise revealed that Form 42A for rejected votes was missing in about 15 out of the 24 polling stations. The Court of Appeal was silent on the matter. Regulation 81 of the Elections (General) Regulations 2012 enjoined the Presiding Officer upon completion of a count, including a recount, to seal in each respective ballot box, among other documents, rejected ballots sealed in a tamperproof envelope. Rejected ballot papers did not constitute a vote cast. The requirements of Regulation 81 (1)(b) were breached by the 2nd and 3rd respondents by their admitted failure to include Form 42A in the ballot boxes. Consequently, rejected ballot papers should not be counted as valid votes, because they were to be rejected.
  21. There was no error in the determination of the Court of Appeal that the 1st respondent met the standard of proof thereby discharging the burden of proof and establishing that indeed there was non-compliance with the Constitution and the law or that the noted irregularities and illegalities did affect the final result, based on both limbs of Section 83 of the Elections Act.
Petition of Appeal dismissed.
Orders
  1. The 2nd respondent shall forthwith declare the seat of the Member of the National Assembly for Magarini Constituency vacant and proceed to conduct a by-election in accordance with the law.
  2. Costs capped at Kshs. 2,000,000 were awarded to the 1st respondent to be paid by the appellant.
  3. Directions made that the sum of Kshs. 6,000 deposited as security for costs upon lodging of the appeal be refunded to the appellant.


Kenya Law
Case Updates Issue 044/23-24
Case Summaries
CIVIL PRACTICE AND PROCEDURE An interlocutory application shall not be originated before a petition of appeal was filed with the Court

Headnote: The main issue that arose was whether the Supreme Court had jurisdiction to determine an appeal despite the alleged absence of a petition of appeal within a litigant’s record of appeal. The court found that there being an application pending certification before the Court of Appeal, it was not for the Supreme Court to, at that juncture, express itself on a jurisdiction that had not been invoked. Since there was no appeal on record, it would become an exercise in futility and an unnecessary waste of scarce judicial time and resources to interrogate and determine whether the Court has jurisdiction to determine the appeal.

National Land Commission v Tom Ojienda & Associates & 2 others (Application E051 of 2023) [2024] KESC 16 (KLR) (26 April 2024) (Ruling)
Neutral citation: [2024] KESC 16 (KLR)

Supreme Court of Kenya
MK Koome, CJ & P, PM Mwilu, DCJ & V-P, SC Wanjala, I Lenaola & W Ouko, SCJJ

Reported by Robai Nasike Sivikhe

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Civil practice and procedure – appeals – appeals to the Supreme Court – proper procedure for filing of appeals – where a petition of appeal was not attached – whether the Supreme Court could determine a matter where the litigant failed to include a petition of appeal in its pleadings – whether the Supreme Court had jurisdiction to determine an appeal despite the alleged absence of a petition of appeal within a litigant’s record of appeal.

Brief Facts
The applicant instructed the 1st respondent to represent it in a suit wherein the petitioners therein sought compensation for alleged loss of their land and mesne profits. Upon conclusion of the matter, the applicant declined to pay the 1st respondent’s legal fees prompting the filing of the Bill of Costs which was subsequently taxed and a Certificate of Costs. Upon delivery of the Ruling on the Bill of Costs, the applicant neither filed a Notice of Objection nor a Reference against the Ruling on Taxation. In a Ruling dated June 21, 2017, the application to enter judgment based on the Certificate of Taxation was allowed and the 1st respondent extracted the decree accordingly.
The applicant failed to take any step to pay the decretal amount, necessitating the institution of garnishee proceedings by the 1st respondent. The High Court rendered a Ruling on the 1st respondent’s application issuing a garnishee order absolute against the applicant’s bank accounts held by the 2nd respondent (1st Garnishee) and the 3rd respondent (2nd Garnishee) as enough to satisfy the decretal amount as per a Certificate of Order Against the National Land Commission. The applicant was granted a stay for 7 days upon an oral application, and subsequently filed a Notice of Appeal, however, that was done before obtaining leave to appeal to the Court of Appeal as was the procedure under Order 43 of the Civil Procedure Rules, 2020 as read with Rule 11 of the Advocates Remuneration Order. Pursuant to a Ruling, the Court of Appeal ordered the applicant to pay the 1st respondent the sum of Kshs.100,000,000.00 in default of which the order for stay would lapse.
Contemporaneously, the applicant filed an application for stay of the orders in High Court and sought leave to appeal to the Court of Appeal, which application was granted. The applicant’s Record of Appeal was however filed at the Court of Appeal before leave to appeal was obtained from the trial court. Subsequently, the 1st respondent filed an application seeking to strike out the Record of Appeal on the grounds, inter alia, that it was filed without leave of the trial court contrary to Order 43 of the Civil Procedure Rules 2020 and Rule 11 of the Advocates Remuneration Order. Thus, the Court of Appeal struck out the entire Record of Appeal for want of jurisdiction for having been filed without obtaining leave in violation of the provisions of the law. That was the decision that had prompted the applicant to approach the Supreme Court. The applicant (National Land Commission) sought a stay of execution of the order made by the High Court. The 1st respondent filled a preliminary objection challenging the Supreme Court’s jurisdiction to hear and determine the applicant’s application. Similarly, the 1st respondent filed an application to strike out the Petition of Appeal.

Issue:

  1. Whether the Supreme Court had jurisdiction to determine an appeal despite the absence of a petition of appeal within a litigant’s record of appeal.

Held:

  1. The Supreme Court Act and Rules provide for the filing of appeals and applications for conservatory orders. Section 23A of the Supreme Court Act mandated the court to only entertain an application for conservatory orders, such as the instant one, after the filing of a petition of appeal before court. That position was reinforced by Rule 31(2) of the Supreme Court Rules, 2020 which provided that an interlocutory application shall not be originated before a petition of appeal was filed with the Court. Thus, a petition of appeal was filed in the context of an appeal.
  2. Rule 39 set out the requirements for instituting an appeal to include a petition of appeal, a record of appeal and the prescribed fee. There were statutory timelines that had to be adhered to including the filing and transmission of the Notice of Appeal as a condition precedent to the filing of the appeal. Accordingly, in practice, litigants filed the appeal on the court’s online portal from which a number was allocated upon payment of the requisite fees or waiver in the case of public institutions such as the applicant. It was within that appeal that an application for conservatory relief was filed and not the other way round.
  3. The applicant deployed quite an unusual approach. The impugned ruling having been delivered on December 8, 2023, the applicant was expected to file, transmit and serve a Notice of Appeal as soon as possible thereafter to signal its intention to appeal. While parties transmit the Notice of Appeal manually, the applicant lodged the same at the Court of Appeal and served it upon parties before uploading the same on the Court’s portal. On the same day of the uploading, the applicant filed, as an application, the instant Motion for conservatory orders and among the documents uploaded was the petition of appeal which was filed as a “Notice of Motion within the Petition”. It was therefore unsurprising that no payment of fees could be made on it nor a petition number generated. When that discrepancy was brought to the attention of the applicant’s representative, he, instead of regularizing the position, resorted to invoking non-existent “administrative” powers of the Registrar, through correspondence, seeking an allocation of a case reference number, itself obviously an exercise in futility. That was a grave inadvertence on the part of the applicant that could not be condoned.
  4. It was incumbent upon any litigant, prior to approaching the Court, to familiarize themselves with requisite procedural requirements to assuage any likely confusion that may arise out of the interpretation of the provisions of the Supreme Court Act and the Supreme Court Rules. There was no petition of appeal on record before the Supreme Court.
  5. The Supreme Court’s appellate jurisdiction was circumscribed in article 163(4) of the Constitution of Kenya. The jurisdiction was as of right in any case involving the interpretation or application of the Constitution; and in any other case in which the Supreme Court, or Court of Appeal, certified that a matter of general public importance was involved. Article 163(5) of the Constitution of Kenya empowered the Court to review and either affirm, vary or overturn a certification decision by the Court of Appeal. That jurisdiction was transcribed in sections 15A and 15B of the Supreme Court Act, setting out the appellate jurisdiction of the Court as of right and upon certification, respectively. In relation to the appeal upon certification, section 15B (2) of the Supreme Court Rules required that an application for certification shall be filed before, and determined by the Court of Appeal in the first instance.
  6. The applicant had filed an application for certification before the Court of Appeal at Kisumu. That application was annexed to the 1st respondent’s replying affidavit in response to the applicant’s Notice of Motion. An application for leave, as a matter of good practice, should originate in the Court of Appeal, which would be better placed to certify whether a matter of general public importance was involved. If the applicant was dissatisfied with the decision in that regard, the party would be at liberty to seek a review under article 163 (5) of the Constitution. That requirement was further encapsulated in section 15B (2) of the Supreme Court Act.
  7. There being an application pending certification before the Court of Appeal, it was not for the Supreme Court to, at that juncture, express itself on a jurisdiction that had not been invoked. Since there was no appeal on record, it would become an exercise in futility and an unnecessary waste of scarce judicial time and resources to interrogate and determine whether the Court has jurisdiction to determine the appeal.

Preliminary objection allowed and the petition of appeal was dismissed..

CIVIL PRACTICE AND PROCEDURE

Grant of leave to adduce additional evidence had not been satisfied

Headnote:The suit involved an application for leave to adduce additional leave and an application to strike out a response for being filed outside the stipulated statutory timelines. The court held that It was apparent that the petitioners, dissatisfied with the Supreme Court’s ruling that declined to strike out the respondent’s replying affidavit, sought, rather ingeniously, a second bite of the cherry through the instant application. The further witness statement that they sought to introduce was intended to counter the averments made in that affidavit. Grant of leave to adduce additional evidence had not been satisfied. The court found that it was not appropriate to strike out the respondent’s response for being filed 4 hours and 40 minutes after the Court’s stipulated time of 9.00am.

Dari Limited & 5 others v East African Development Bank (Petition (Application) E012 of 2023) [2024] KESC 18 (KLR) (Civ) (26 April 2024) (Ruling)
Neutral citation: [2024] KESC 18 (KLR)
Supreme Court of Kenya
PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, NS Ndungu & W Ouko, SCJJ
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Civil practice and procedure – pleadings – filing of additional evidence – seeking leave to adduce additional evidence before the Supreme Courts – guidelines to be considered before an application to adduce additional evidence is allowed – whether the application to adduce additional evidence met the legal threshold set by the Supreme Court, hence it ought to be allowed – Supreme Court Act, section 20 (2)
Civil practice and procedure – limitation of time – time within which to file a response to an interlocutory application – where the response to an interlocutory application was filed 4 hours after the stipulated time – whether a response to an interlocutory application filed outside time, by a margin difference of approximately 4 hours, ought to be struck out – Supreme Court Rules, rule 31 (4)

Brief facts:
Before the Supreme Court were two notices of motion applications filed by the petitioners. The first application sought leave to adduce additional evidence while the second one sought to strike out the respondent’s replying affidavit sworn by Carol Luwaga on January 31, 2024 in response to the petitioners’ first application. On the first application, the petitioners affirm that the further witness statement adduced by the respondents was not within their knowledge and allowing additional evidence from the petitioner would remove the vagueness of the slanted historical narrative contained in the respondent’s response.
On the second application, the petitioners contended that they effected service of their application to adduce additional evidence upon counsel on record for the respondent on January 30, 2024 at 8. 30AM in compliance with the Court’s directions issued on January 29, 2024. That the respondent without any justifiable cause and in total disregard of the Court’s directions purported to effect service of its unfiled response upon the petitioners electronically on February 1, 2024 at 11. 43AM; then proceeded to attempt to serve their duly filed response together with their submissions upon the petitioners on the same day at 1:40PM, which was 4 hours and 40 minutes after the Court’s stipulated time of compliance, that was 9.00AM on even date. Pursuant to rule 12 as read with rule 16 of the Supreme Court Rules, filing was only deemed to be completed upon the actual filing of documents and / or pleadings both physically and electronically. The respondent neither provided viable reasons as to the non – compliance nor was leave sought to file its response out of time; therefore, the only redress to maintain the sanctity of the Supreme Courts’ records was striking out the response.

Issues:

  1. Whether the application to adduce additional evidence met the legal threshold set by the Supreme Court, hence it ought to be allowed.
  2. Whether a response to an interlocutory application filed outside time, by a margin difference of approximately 4 hours, ought to be struck out.

Held:

  1. Whereas rule 31 (4) of the Supreme Court Rules stipulated that a response to the interlocutory application together with written submissions shall be filed and served within seven days, Rule 3 (5) affirmed the unlimited inherent power of the Court to make such orders or give directions as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
  2. The first application dated January 26, 2024, for adducing additional evidence, was filed under certificate of urgency and certified as such by the duty judge necessitated the Deputy Registrar to issue the directions of January 29, 2024 to facilitate its expeditious disposal in line with rule 3(5) thereby varying the time provided under rule 31 (4). The Court may vary that time frame as provided under rule 3(5) to succor the furtherance of expeditious administration of justice.
  3. It was not appropriate to strike out the respondent’s response for being filed 4 hours and 40 minutes after the Court’s stipulated time of 9.00am. The respondent used best efforts under the circumstances with part of the delay being attributable to the Judiciary e -filing system, a fact which was uncontroverted.
  4. Conversely, the petitioners alleged that there was no evidence that the deponent of the respondent’s response, who was a resident of Uganda, was in Nairobi at the time neither was the signature witnessed by a Ugandan Notary Public. It was trite law that whoever alleged must prove. In the instant, case the petitioners who had alleged had not validated their averments with any proof to justify their allegations. Therefore, those were bare allegations that were unsubstantiated.
  5. The governing principles on the Supreme Court’s jurisdiction to grant leave to adduce additional evidence was laid down in case law and later incorporated under section 20 (2) of the Supreme Court Act. The Court, in admitting additional evidence, shall consider whether the additional evidence –
    1. was directly relevant to the matter before the Court;
    2. was capable of influencing or impacting on the decision of the Court;
    3. could not have been obtained with reasonable diligence for use at the trial;
    4. was not within the knowledge of the party seeking to adduce the additional evidence;
    5. removed any vagueness or doubt over the case;
    6. was credible and bore merit;
    7. would not make it difficult or impossible for the other party to respond effectively; and disclosed a case of wilful deception to the Court.
  6. It was not in dispute that the further witness statement that sought to be adduced propounded the history of engagements between those parties and the nature of the Facility Agreement. The petitioners alleged that the further witness statement would clear the conflicting factual contestations between the parties. As a matter of course, the petitioners had not explained the relevance of the further witness statement in relation to their appeal. It was apparent that the petitioners, dissatisfied with the Supreme Court’s ruling that declined to strike out the respondent’s replying affidavit, sought, rather ingeniously, a second bite of the cherry through the instant application. The further witness statement that they sought to introduce was intended to counter the averments made in that affidavit. Grant of leave to adduce additional evidence had not been satisfied.
  7. Costs follow the event. The party in default in instituting the appeal shall be liable to pay the costs arising. Since the substantive dispute was still pending, it was only proper that the costs abide the outcome of the appeal.

Orders

  1. The notice of motion dated and filed on January 26, 2024 was dismissed.
  2. The notice of motion dated and filed on February 2, 2024 was dismissed.
  3. Costs of the applications shall abide the outcome of the appeal.