SUMMARY OF THE SUPREME COURT OF KENYA RULING IN KENYA HOTEL PROPERTIES LIMITED -VS- THE ATTORNEY GENERAL & 5 OTHERS

Before the Supreme Court was a Notice of Motion application dated 17th February 2021, by Kenya Hotel Properties Limited. The application sought the following orders:

  1. That leave be granted to the applicant, Kenya Hotel Properties Limited, extending time to file its Supplementary Record of Appeal out of time;
  2. That the Supplementary Record of Appeal dated 8th February 2021 and filed on 9th February 2021 be deemed as duly and properly filed; and
  3. That costs of the application to abide the result of the appeal.

The substantive matter before the court was Kenya Hotel Properties Limited’s petition of appeal, No. 16 of 2020. This appeal sought to set aside the judgment of the Court of Appeal at Nairobi, which had dismissed both the appeal from the High Court, filed by them, and an application for review for lack of merit.

In the Application before the Supreme Court, Kenya Hotel Properties Limited submitted that at the time of filing of Petition No. 16 of 2020, it did not have the certified order and typed proceedings from the Court of Appeal, but duly filed the petition of appeal within 14 days of judgment. It also submitted that it diligently pursued the typed proceedings and the certified order, which were supplied to it on 4th February, 2021. This was beyond the 30-day period within which it was supposed to file the records from the Court of Appeal, as required under the Supreme Court Rules. Kenya Hotel Properties Limited submitted that the delay in filing the supplementary record of appeal was occasioned by administration issues at the Court of Appeal, and not its own fault.

ISSUE FOR DETERMINATION BEFORE THE SUPREME COURT

The issue for determination before the Supreme Court was whether the Court should grant an extension of time for the Applicant to file a Supplementary Record of Appeal out of time; and if so, whether the Court should deem the electronically uploaded Supplementary Record as properly filed.

In allowing the application, the Court reiterated the provision of Rule 15(2) of the Supreme Court Rules, 2020 which states that the Court has the discretion to extend the time stipulated by the Rules or by any decision of the Court. It further stated that since the applicant had urged that he was not able to file the certified order and typed proceedings from the Court of Appeal within the stipulated timelines due to a delay occasioned by the Court of Appeal in issuing them, it was satisfied that the applicant had provided a plausible and reasonable explanation for the delay in filing the Supplementary Record. It stated as follows:  

“We are equally satisfied that the delay in the circumstances was not inordinate. In addition, we note that the documents sought to be introduced through the Supplementary Record of Appeal are not prejudicial to any of the respondents and are considered necessary by the applicant. Consequently, we are inclined to extend time for the applicant to file its Supplementary Record.”

As to whether the court should deem the uploaded Supplementary Record of Appeal as proper before it, the court maintained its position in the Nick Salat Case, as well as in County Executive of Kisumu v County Government of Kisumu & 8 others, where it had found that an appeal filed out of time without leave of the Court was irregular, and the Court would not invoke ‘novel’ principles so as to validate such an appeal and deem it properly filed. Therefore, the said Supplementary Record was not properly filed since it was filed out of time without leave.

The court went ahead to allow the Applicant’s Notice of Motion, and to direct the Applicant to file and serve its Supplementary Record within 14 days. It further expunged the Supplementary Record of Appeal that had been initially uploaded from the Court’s Record.

By Andrew Wanga

www.mmsadvocates.co.ke

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