Edward Akong’o Oyugi v Zacharia Okoth Obado, Independent Electoral and Boundaries Commission & Jairus Obaga-County Returning Office Migori County [2017] KESC 23 (KLR)

Edward Akong’o Oyugi v Zacharia Okoth Obado, Independent Electoral and Boundaries Commission & Jairus Obaga-County Returning Office Migori County (Application 7A of 2016) [2017] KESC 23 (KLR) (Civ) (24 March 2017) (Ruling)

Edward Akong’o Oyugi v Zacharia Okoth Obado & 2 others [2017] eKLR

Neutral citation: [2017] KESC 23 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Civil

Application 7A of 2016

MK Ibrahim & I Lenaola, SCJJ

March 24, 2017

Between

Edward Akong’O Oyugi

Applicant

and

Zacharia Okoth Obado

1st Respondent

Independent Electoral and Boundaries Commission

2nd Respondent

Jairus Obaga County Returning Office , Migori County

3rd Respondent

(Being an application for extension of time to file an application for review and setting aside of part of the Judgment of the Supreme Court in Petition No. 4 of 2014 delivered on 17th July, 2014 at Nairobi(Mutunga C.J&P, Rawal DC.J & V.P, Tunoi, Ibrahim, Ojwang, Wanjala & Njoki, SCJJ)

Ruling

1. Upon perusing the Notice of Motion application dated 25th April, 2016 and filed on 27th April, 2016, for extension of time to file an application for review of part of this Court’s Judgment in Petition No. 4 of 2014, directing the applicant to pay costs to the 1st respondent and that the grant of leave do act as a stay of execution; and

2. Upon reading the applicant’s affidavit sworn by Edward Akongo Oyugi, on 25th April, 2016, the 1st respondent’s replying affidavit sworn by Zachariah Okoth Obado on 17th October, 2016 and the 2nd and 3rd respondents replying affidavit sworn by Praxedes Tororey on 14th September, 2016; and

3. Upon considering the written submissions on record for the applicant and the respondents, wherein, the applicant contends that the delay was occasioned by the conduct of his then advocate on record, who despite being given instructions failed to file the application for review necessitating a change of advocates; and the 1st respondent’s contention that the delay of 21 months from the date of the delivery of Judgment is inordinate, inexcusable and unreasonable and in any case that this Court is functus officio, having given its final determination. Further, noting the 2nd and 3rd respondents’ opposition to the application, arguing that the 2 years’ delay is inordinate and that the applicant has not given any justifiable reason for the said delay and that the applicant has not provided any evidence to show that his former advocate failed to act on any instructions given.

4. Andhaving considered the application, by a unanimous decision of this Bench, we make the following Orders under Section 23(2)(b) of the Supreme Court Act, and Rule 21 and 23 of the Supreme Court Rules, 2012(as amended).

Ordersa. The Notice of Motion Application dated 25th April, 2016 is hereby dismissed with costs to the respondents as costs follow the event.

Reasonsa. The application does not satisfy the principles laid down in the case of Nicholas Kiptoo Arap Korir Salat v. The Independent Electoral and Boundaries Commission & 7 Others, Appl. No. 16 of 2014. b. The delay of 21 months is unjustifiable and unreasonable in the circumstances. The said delay is also inordinate.

DATED AND DELIVERED AT NAIROBI THIS 24TH DAY OF MARCH, 2017. .....................................................M.K. IBRAHIM I. LENAOLAJUSTICE OF THE SUPREME JUSTICE OF THE SUPREMECOURT COURTI certify that this is atrue copy of the originalREGISTRAR, SUPREME COURT