Case ID:149895

Emmanuel Changawa Kombe v Mohamed Ali Sheikh & 4 others [2019] eKLR

Case Metadata

Case Number:

Petition (Application) 5 of 2019

Parties:

Emmanuel Changawa Kombe v Mohamed Ali Sheikh,Abdiwahab Sheikh Osman Hathe,Abdullahi Mohamed Ollow,Issack Muhumed Mohamed & Independent Electoral & Boundaries Commission

Date Delivered:

17 Dec 2019

Case Class:

Civil

Court:

Supreme Court of Kenya

Case Action:

Ruling

Judge(s):

Jackton Boma Ojwang, Isaac Lenaola, Mohammed Khadhar Ibrahim, Smokin Charles Wanjala, Njoki Susanna Ndungu

Citation:

Emmanuel Changawa Kombe v Mohamed Ali Sheikh & 4 others [2019] eKLR

Case History:

Being an application for extension of time to file an appeal, to deem the appeal on record as properly filed, to amend the appeal and for leave to file a supplementary Record of Appeal against the Ruling and Orders of the Court of Appeal (Visram, Nambuye, Musings, Odek & Gatembu JJ.A) in Election Appeal No. 32 of 2018 (Application No. 261 of 2018) delivered at Nairobi on the 19th December, 2018

Court Division:

Civil

County:

Nairobi

Case Summary:

The appropriate remedy for curing a delay in filing an appeal is to seek a court order for extension of time for filing

Emmanuel Changawa Kombe v Mohamed Ali Sheikh & 4 others [2019] eKLR

Petition (Application) No. 5 of 2019

Supreme Court of Kenya

MK Ibrahim, JB Ojwang, SC Wanjala, N Njoki & I Lenaola, SCJJ

December 17, 2019.

Reported by Kakai Toili

Civil Practice and Procedure

– appeals – timelines for filing appeals – where a party sought to file an appeal out of time – remedies available - what was the appropriate remedy for curing a delay in filing an appeal out of time -

Supreme Court Act, 2011, section 23(2)(b); Supreme Court Rules, 2012, rules 21 and 23

Brief facts

The applicant filed the instant application seeking an extension of time to file an appeal and record of appeal out of time against the ruling and orders of the Court of Appeal. The appellant also prayed for the appeal and record filed to be deemed as properly on record, for leave to amend the appeal and for leave to file a supplementary record of appeal.

The applicant alleged that that the delay in filing the appeal and record of appeal was occasioned by circumstances beyond his control, namely;

the delay in getting certified copies of typed proceedings from the Court of Appeal within the stipulated 30 days from the date of filing the notice of appeal;

that on the last day on which the applicant would have filed the appeal, the court’s registry was closed and that upon inquiry, the applicant was informed that the registry staff members were attending a training in Naivasha;

that the registry remained closed until when the applicant lodged his appeal, but was advised to effect certain corrections thereto; and that wasn’t until when the appeal and record of appeal were finally presented and lodged, thus occasioning a six-day delay.

Issue

What was the appropriate remedy for curing a delay in filing an appeal out of time?

Held

The applicant had provided a plausible and reasonable explanation for the delay in filing of his appeal and record of appeal. The delay in the circumstances was not inordinate. The appropriate remedy for curing a delay in filing an appeal was to seek an order from the court, extending the time within which to file the same. The court took a dim view of applications asking the court to deem as properly filed, those appeals that had been lodged out of time.

Application partly allowed; costs to abide the cause.

Orders

Applicant to file the appeal and record of appeal within 14 days from the date of the ruling.

The purported appeal, to wit, Petition No. 5 of 2019 struck out and expunged from the court’s record.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI

(Coram: Ibrahim, Ojwang, Wanjala, Njoki & Lenaola SCJJ)

PETITION (APPLICATION) NO. 5 OF 2019

BETWEEN

EMMANUEL CHANGAWA KOMBE....................APPPELLANT/APPLICANT

AND

MOHAMED ALI SHEIKH ...................................................1

ST

RESPONDENT

ABDIWAHAB SHEIKH OSMAN HATHE...........................2

ND

RESPONDENT

ABDULLAHI MOHAMED OLLOW......................................3

RD

RESPONDENT

ISSACK MUHUMED MOHAMED........................................4

TH

RESPONDENT

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION ..........................................5

TH

RESPONDENT

(Being an application for extension of time to file an appeal, to deem the appeal on record as properly filed, to amend the appeal and for leave to file a supplementary Record of Appeal against the Ruling and Orders of the Court of Appeal

(Visram, Nambuye, Musings, Odek & Gatembu JJ.A)

in Election Appeal No. 32 of 2018 (Application No. 261 of 2018) delivered at Nairobi on the 19

th

December, 2018).

RULING OF THE COURT

[1] UPON

perusing the Notice of Motion Application dated 24

th

March 2019, brought under Sections 3, 12, and 24 of the Supreme Court Act, 2011 and Rules 3, 8, 23, 26 and 53 of the Supreme Court Rules, 2012, seeking an extension of time to file an appeal and record out of time against the Ruling and Orders of 19

th

December, 2018 by the Court of Appeal in

Election Appeal No. 32 of 2018

(Application No. 261 of 2018), for the appeal and record filed on 6

th

February, 2019 to be deemed as properly on record, for leave to amend the Appeal and for leave to file a supplementary record of appeal; and

[2] UPON

reading the Applicant’s grounds in support of the Application and the Supporting Affidavit sworn on 14

th

March, 2019 by

Omagwa Angima

, wherein the deponent states that the delay in filing the Appeal and Record of Appeal, was occasioned by circumstances beyond the Applicants control, namely;

(i) The delay, in getting certified copies of typed proceedings from the Court of Appeal within the stipulated 3o days from the date of filing the Notice of Appeal;

(ii) That on 1

st

February 2019, the last day on which, the Applicant would have filed the Appeal, this Court’s registry was closed, and that upon inquiry, the Applicant was informed that the registry staff members were attending a training in Naivasha;

(iii) That the registry remained closed, until the 4

th

of February 2019, when the applicant lodged his Appeal, but was advised to effect certain corrections thereto; and

(iv) That it wasn’t until the 6

th

of February 2019, when the Appeal and Record of Appeal were finally presented and lodged, thus occasioning a six-day delay.

[3] UPON

considering the Applicant’s written submissions dated 9

th

May, 2019 and filed on 10

th

May, 2019 wherein the Applicant restates the grounds in support of the application, and in addition submits that the Record as filed is incomplete, as it is not in keeping with Rule 33 (g) and (h) of the Supreme Court Rules, 2012; and

[4] UPON

noting that the Respondents have not complied with the directions of this Court issued on 8

th

of April 2019, 3

rd

of June 2019, and 3rd of July 2019;

[5] WE FIND

as follows:

(a) In keeping with the decision of this Court in

Nicholas Kiptoo Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others

Application No. 16 of 2014

and

Hassan Nyanje Charo v Khatib Mwashetani & 3 Others

SC Application No. 15 of 2014; we are satisfied that the applicant has provided a plausible and reasonable explanation for the delay in filing of his Appeal and Record of Appeal. We are further satisfied that the delay in these circumstances was not inordinate.

[7]

We also restate and re-affirm the principle enunciated in

Nicholas Kiptoo Korir Salat

(Supra)

that the appropriate remedy, for curing a delay in filing an appeal, is to seek an Order from the Court, extending the time within which, to file the same. We still take a dim view of applications, asking the Court to deem as properly filed, those appeals that have been lodged out of time.

[8] HAVING

made the foregoing determinations, by a unanimous decision of this Bench, we make the following Orders under Section 23(2)(b) of the Supreme Court Act, 2011 and Rules 21 and 23 of the Supreme Court Rules, 2012;

ORDERS

(i) The application dated 24

th

March, 2019 seeking the extension of time to file the Appeal and Record of appeal is hereby allowed;

(ii) Applicant shall file the Appeal and Record of Appeal within 14 days from the date of this Ruling;

(iii) The purported Appeal, to wit, Petition No. 5 of 2019 is hereby struck out and expunged from the Court’s Record;

(iv) The Costs of this Application shall abide the cause.

Orders accordingly.

DATED

and

DELIVERED

at

NAIROBI

this 17

th

Day of

December,

2019

.

………………………………………… ……………………………………

M. K. IBRAHIM

J. B. OJWANG

JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT

…………………………………………. ……………………………………….

S. C. WANJALA

NJOKI NDUNGU

JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT

………………………………………….

I. LENAOLA

JUSTICE OF THE SUPREME COURT

I certify that this is a true copy of the original

REGISTRAR

SUPREME COURT OF KENYA