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Supreme CourtDismissedApplication E003 of 2025

Athi River Steel Plant Limited v Rao & 4 others

Supreme Court of Kenya
16 May 2025
3,161 words in judgment
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AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Supreme Court dismisses appeal because the Court of Appeal never ruled on certification.

What this practically means

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Harit Sheth wanted the Supreme Court to hear his appeal, but he missed a deadline at the Court of Appeal. A single judge refused to give him more time. Instead of asking a full panel of the Court of Appeal to review that refusal, he went straight to the Supreme Court. The Supreme Court said it cannot step in because the Court of Appeal never made a decision on whether the case raises a matter of general public importance. The proper route is to first let the Court of Appeal decide on certification.

Executive summary

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The applicant, Harit Sheth, filed a notice of motion seeking review of a Court of Appeal decision that declined to extend time to file an application for certification under Article 163(4)(b) of the Constitution. The applicant also sought certification that the intended appeal raises matters of general public importance and leave to appeal to the Supreme Court. The background involved a dispute over the appointment of a receiver under the Insolvency Act, 2015. The Court of Appeal (Achode, JA) had dismissed the application for extension of time, finding that misapprehension of the law and complexity of legal issues were not sufficient reasons to excuse the inordinate delay of six months. Subsequently, the applicant withdrew the remainder of the application seeking certification before a full bench of the Court of Appeal. The Supreme Court dismissed the application, holding that it lacked jurisdiction to review the discretionary decision of a single judge on extension of time. The Court further held that since the applicant had withdrawn the certification application, there was no decision of the Court of Appeal on certification for the Supreme Court to review. The Court emphasized that the Court of Appeal should be afforded the first opportunity to consider certification, and circumventing this procedure amounts to abuse of process. The Court declined to delve into the merits of the proposed issues of general public importance. Costs were awarded to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has jurisdiction to review the decision of a single judge of the Court of Appeal declining to extend time to file an application for certification.
  2. 2.Whether the Court of Appeal had an opportunity to consider the application for certification before it was withdrawn.
  3. 3.Whether the intended appeal raises matters of general public importance warranting certification.

Key legal issues

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01

Whether the Supreme Court has jurisdiction to review a decision of a single judge of the Court of Appeal declining extension of time.

Holding

The Supreme Court declined to exercise jurisdiction to review the decision of a single judge of the Court of Appeal on extension of time, noting that such a decision is discretionary and the applicant had not demonstrated any error in its exercise.

Reasoning

The Court held that the decision on extension of time is discretionary and it was not persuaded to interfere with it. The Court also noted that the applicant had not followed the proper procedure under rule 57(1)(b) of the Court of Appeal Rules for challenging a single judge's decision, which is to apply for reference to a full bench. The Supreme Court's jurisdiction under Article 163(4)(b) is to review decisions on certification, not to review interlocutory discretionary rulings on extension of time made by a single judge of the Court of Appeal.

02

Whether the Supreme Court can consider an application for certification where the Court of Appeal did not determine the certification application on its merits.

Holding

The Supreme Court cannot consider an application for certification where the Court of Appeal did not determine the certification application because it was withdrawn before any decision was made.

Reasoning

The Court found that after the single judge declined extension of time, the applicant withdrew the remainder of the application seeking certification. Consequently, there was no decision of the Court of Appeal on certification for the Supreme Court to review under Article 163(5) of the Constitution. The Court emphasized that the Court of Appeal should have the first opportunity to consider certification, and circumventing this procedure would amount to abuse of process.

Legal principles established

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  • The Court of Appeal should first decide whether an appeal can go to the Supreme Court under Article 163(4)(b) of the Constitution.
  • If an applicant withdraws a certification request at the Court of Appeal, there is no decision for the Supreme Court to review.
  • The Supreme Court will not overturn a Court of Appeal decision on extension of time unless the discretion was clearly wrong.
  • Skipping the Court of Appeal's certification process and coming directly to the Supreme Court is an abuse of court process.
  • A single judge's refusal to extend time must first be challenged before a full bench of the Court of Appeal, not the Supreme Court.

Court orders

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  1. 1.The notice of motion dated February 26, 2025 and filed on February 27, 2025 be and is hereby dismissed.
  2. 2.The costs thereof shall be borne by the applicant.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Jurisdiction invoked
Article 163(4)(b) of the Constitution, section 15B of the Supreme Court Act, and Rule 33 of the Supreme Court Rules

Relief refused

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Review of the Court of Appeal's decision declining extension of time

The decision on extension of time is by nature in exercise of discretion by the Court of Appeal which we are not persuaded to interfere with.

Certification that the intended appeal raises matters of general public importance

The Court of Appeal did not consider the application for certification as it was withdrawn; therefore there is no decision for this Court to review.

Extension of time to file application for certification

The Court of Appeal declined extension of time and this Court declined to interfere with that discretionary decision.

Costs

The costs thereof shall be borne by the applicant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the Court of Appeal should ideally be afforded the first opportunity to express an opinion as to whether an appeal should lie to the Supreme Court or not under that provision.
p. 7 jurisdiction
there is no decision of the Court of Appeal on the prayer for certification, which this Court can review.
p. 7 certification
the decision on extension of time is by nature in exercise of discretion by the Court of Appeal which we are not persuaded to interfere with.
p. 7 extension-of-time

Key timeline

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2025-02-26
Harit Sheth files notice of motion at the Supreme Court seeking review of the Court of Appeal's refusal to extend time and certification.
2025-02-27
Supreme Court dismisses the motion, holding it lacks jurisdiction to review the single judge's discretionary decision on extension of time.

Practical implications

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For lawyers

Follow the certification ladder

When a single judge of the Court of Appeal refuses an extension of time, do not leapfrog to the Supreme Court. First, apply under rule 57(1)(b) of the Court of Appeal Rules for a reference to a full bench. Only after the full bench decides on certification can you approach the Supreme Court under Article 163(5). Skipping steps risks dismissal with costs.

For businesses

If you are involved in a commercial dispute and miss a court deadline, act quickly. A six-month delay without a strong excuse (like illness or fraud) will likely be fatal. Even if you get an extension, you must still follow the correct appeal route. Going directly to the Supreme Court without first getting a certification decision from the Court of Appeal wastes time and money.

For individuals

If you lose a case and want to appeal to the Supreme Court, you must first ask the Court of Appeal for permission (certification). Do not withdraw that request and then try to go to the Supreme Court directly. The Supreme Court will not hear you because the Court of Appeal never made a decision on certification. Always follow the steps in order.

Frequently asked questions

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Can I appeal directly to the Supreme Court in Kenya if the Court of Appeal refuses to extend time?+

No. The Supreme Court in Harit Sheth v Ponangipalli Venkata Ramana Rao (2025) ruled that it cannot review a single judge's refusal to extend time. You must first ask a full bench of the Court of Appeal to review that decision.

What happens if I withdraw my certification application at the Court of Appeal in Kenya?+

If you withdraw the certification application before the Court of Appeal decides it, the Supreme Court has nothing to review. You cannot then ask the Supreme Court to certify the appeal. The Court of Appeal must first make a decision on certification.

What is the correct procedure to appeal to the Supreme Court in Kenya on a matter of general public importance?+

First, apply to the Court of Appeal for certification that the case raises a matter of general public importance. If the Court of Appeal refuses, you can then appeal that refusal to the Supreme Court under Article 163(5) of the Constitution.

Does the Supreme Court in Kenya review discretionary decisions of the Court of Appeal on extension of time?+

Generally, no. The Supreme Court will only interfere if the Court of Appeal exercised its discretion improperly. In Harit Sheth (2025), the Court declined to review a single judge's refusal to extend time, saying it was not persuaded the discretion was wrongly used.

Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Athi River Steel Plant Limited v Rao & 4 others", Case Analysis (2025). Application E003 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/23/eng@2025-05-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.