Rosemary Wanja Mwagiru, Stephen Mbugua Mwagiru & Robert Githui v Attorney General, Tatu City Limited, Kofinance Company Limited & Director of Public Prosecution [2019] KESC 86 (KLR)

REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI

(Coram: Maraga (CJ & P), Ibrahim, Ojwang, Wanjala, & Njoki, SCJJ)

APPLICATION NO. 20 OF 2019

BETWEEN

ROSEMARY WANJA MWAGIRU...............................................1ST APPLICANT

STEPHEN MBUGUA MWAGIRU...............................................2ND APPLICANT

ROBERT GITHUI.........................................................................3RD APPLICANT

AND

THE ATTORNEY GENERAL..................................................1ST RESPONDENT

TATU CITY LIMITED..............................................................2ND RESPONDENT

KOFINANCE COMPANY LIMITED....................................3RD RESPONDENT

DIRECTOR OF PUBLIC PROSECUTION...........................4TH RESPONDENT

(Being an application for extension of time to file an appeal against the Judgement and Orders of the Court ofAppeal in Civil Appeal No 349 of 2013 (Karanja, Kiage & Sichale, JJ.A) delivered on 10th May, 2019)

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RULING OF THE COURT

[1] UPONperusing the Notice of Motion Application dated 9th July 2019, and filed on even date, for extension of time to file an appeal and record of appeal out of time, against the Judgment and Orders of the Court of Appeal in Civil Appeal No. 349 of 2013 delivered on 10th May, 2019, brought under the Provisions of Article 163 (4) of the Constitution, Sections 21(2), 24(1) of the Supreme Court Act and Rules 21, 23, 26 and 53 of the Supreme Court Rules, 2012; and

[2] UPON reading the Applicants’ grounds in support and the Supporting Affidavit, sworn by Rosemary Wanja Mwagiru on 28th September 2018, wherein it is averred, that the delay in filing the appeal and record of appeal in time, was occasioned by the unavailability of certified proceeding from the Court of Appeal, and by the fact that, the applicant’s advocate on record, Dr. Gibson Kamau Kuria, was unwell and admitted to Nairobi Hospital between 29th May 2019 and 25th June 2019; and

[3] UPON reading the 2nd and 3rd Respondents’ Notice of Preliminary Objection dated 16th July 2019, challenging this Court’s jurisdiction to issue the orders sought, on grounds that, the intended appeal, is not one involving the interpretation and application of the Constitution, pursuant to Article 163 (4) (a) of the Constitution, and that the Applicants have not sought Certification, under Article 163(4) (b) of the Constitution; and

[3] UPONconsidering the Applicants’ written submissions, in support of the Motion filed on 9th July 2019, and the written submissions in opposition to the Preliminary Objection, dated 22nd July 2019, wherein they restate the reasons for the delay, and contend that this court has jurisdiction, to hear and determine the Application; that the intended appeal challenges the Court of Appeal’s interpretation and application of Article 157(6) and (10) of the Constitution; and

[4] UPONconsidering the written submissions by the 2nd and 3rd Respondents dated 29th July 2019, in support of the Preliminary Objection, wherein it is contended that this Court lacks jurisdiction, under Article 163(4)(a) of the Constitution to hear and determine the intended appeal, as the same does not involve a question of constitutional interpretation and application; that the High Court and the Court of Appeal  did not deal with the interpretation or application of Article 157 (6) of the Constitution or any other  constitutional provision; that Article 157(6) of the Constitution or any other constitutional provisions did not form the basis of the judgment of the Appellate Court; that the Applicants therefore, ought to have sought Certification from the Court of Appeal for this Court to assume jurisdiction; and

[5] UPONconsidering the written submissions by the 4th Respondent, dated 12th September 2019, in support of the Preliminary Objection, in which it agrees in substance with the 2nd and 3rd Respondents that this Court lacks jurisdiction to entertain the application and the intended appeal; and

[6] HAVING CONSIDERED the questions at the core of the Application viz: whether this Court has jurisdiction under Article 163 (4) (a), to entertain the intended appeal and whether the applicants herein, have made a compelling case for this Court to exercise discretion to grant the orders for enlargement of time.  By a unanimous decision of this Bench, pursuant to the provisions of Article 163 (4) (a), Sections 21(2) of the Supreme Court Act, 2011 and Rules 21, 23 and 53 of the Supreme Court Rules, 2012, we findas follows:

(a) While the inability by an applicant, to obtain certified copies from the Court of Appeal in good time, would in ordinary circumstances, be reason enough for the extension of time by this Court, such reason, will not suffice in circumstances where, the intended appeal, is premised upon Article 163 (4) (a) of the Constitution. In such a scenario, the applicant must satisfy the Court, that his intended appeal, is one involving the interpretation and/or application of the Constitution.

(b) A perusal of the intended appeal, and record thereof, annexed by the Applicants, reveals that neither the High Court, nor Court of Appeal, engaged in any exercise of interpretation or application of Article 157(6) and (10) of the Constitution. In keeping with this Court’s decision in Lawrence Nduttu & 6000 Others v. Kenya Breweries Ltd & Another SC Petition No. 3 of 2012 [2012] eKLR, we find no basis upon which the Application for extension of time can be sustained. As clearly enunciated in that case, to successfully invoke the provisions of Article 163 (4) (a) of the Constitution, an appellant must be challenging the interpretation or application of the Constitution, which the Court of Appeal used to dispose of the matter in that forum. Such a party, must be faulting the Court of Appeal, on the basis of such interpretation.

In the circumstances, we hereby Order that:

ORDERS REASONS

1. The 2nd and 3rd Respondents’ Notice of Preliminary Objection dated 16th July, 2019 is hereby allowed This Court lacks jurisdiction under Article 163(4) (a) of the Constitution. The  intended appeal does not meet the threshold set out in Lawrence Nduttu & 6000 Others v. Kenya Breweries Ltd & Another SC Petition No. 3 of 2012

2. The Application dated 9th July, 2019 is hereby  dismissed. Want of jurisdiction.

3. The Applicants shall bear the costs of the Application As per the holding inJasbir Singh Rai & 3 Others v. Tarlochan Singh Rai Estate of & 4 OthersPetition No. 4 of 2012 [2013] eKLR, costs follow the event.

DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF DECEMBER, 2019.

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D. K. MARAGA                                                   M. K. IBRAHIM

CHIEF JUSTICE & PRESIDENT                     JUSTICE OF THE SUPREME COURT

OF THE SUPREME COURT

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J. B. OJWANG                                                        S. C. WANJALA

JUSTICE OF THE SUPEME COURT                 JUSTICE OF THE SUPEME COURT

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NJOKI NDUNGU

JUSTICE OF THE SUPREME COURT

I certify that this is a true copy of the original

REGISTRAR,

SUPREME COURT OF KENYA