Jimnah Mwangi Gichanga v Secretary, Teachers Service Commission [2019] KESC 88 (KLR)

REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI

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

APPLICATION NO. 3 OF 2019

BETWEEN

JIMNAH MWANGI GICHANGA.………………………………………......APPLICANT

AND

THE SECRETARY, TEACHERS SERVICE COMMISSION……..…..RESPONDENT

(Being an application for extension of time to file and serve a Notice of Appeal and Appeal out of time against the Judgment and Orders of the Court of Appeal (Sichale, Kantai & Waki JJ.A) in Civil Appeal No. 122 of 2017 delivered at Nairobi on the 20th April, 2018)

RULING OF THE COURT

[1] UPON perusing the Notice of Motion Application dated 1st February 2019, and brought under Sections 15 and 16 of the Supreme Court Act, and any other enabling provisions of law, seeking extension of time to file a Notice of Appeal and an Appeal out of time against the Judgment and Orders of the Court of Appeal, in Civil Appeal No. 122 of 2017delivered on 20th April, 2018; and

[2] UPONreading the Applicant’s grounds in support of the application and his undated but sworn supporting affidavit, wherein he avers that; the delay in filing the Notice of Appeal was occasioned, not by any act or omission on his part, but by the failure of the Court of Appeal, to inform him of his right of appeal to the Supreme Court, under Article 163 (4) (b) of the Constitution; and

[3] UPONconsidering the Applicant’s written submissions filed on 2nd August 2019, wherein, the Applicant merely draws the Court’s attention, without more, to the failure by the Respondent, to file written submissions in response to the Application as directed by the Deputy Registrar; and

[4] WHILE NOTING that indeed, the Respondent has failed to comply with the directions of this Court, requiring it to file written submissions in response to the Application herein, within the specified timeframes;

[5] WE FINDas follows:

The averments and written submissions, by the Applicant herein, in support of his Application for extension of time to file an Appeal, do not provide a sufficient basis upon which, this Court can exercise its discretion to indulge the Applicant. The reasons advanced by the Applicant, to explain the inordinate delay (to wit, 290 days), in filing the Appeal, are neither reasonable, nor credible. The Application does not meet the threshold for grant of extension of time as set out in Nicholas Kiptoo Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others Application No. 16 of 2014 and in Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others SC Application No. 15 of 2014;

HAVINGmade 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 1st February, 2019 and filed on 4th February, 2019 is hereby dismissed.

(ii)No Orders as to cost.

Orders accordingly.

DATED and DELIVERED at NAIROBI this 17th Day of December, 2019.

M. K. IBRAHIM                                                                  J. B. OJWANG

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JUSTICE OF THE SUPREME COURT                          JUSTICE OF THE SUPREME COURT

S. C. WANJALANJOKI NDUNGU

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JUSTICE OF THE SUPREME COURT                         JUSTICE OF THE SUPREME COURT

I. LENAOLA

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JUSTICE OF THE SUPREME COURT

I certify that this is a true copy of the original

REGISTRAR

SUPREME COURT OF KENYA