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Supreme CourtDismissedCivil Application 3 of 2016

County Executive of Kisumu v County Government of Kisumu & 8 others

Supreme Court of Kenya
12 April 2017
Mohammed Khadhar IbrahimM.K. IbrahimSmokin Charles WanjalaS.C. Wanjala
4,685 words in judgment
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The bottom line

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Supreme Court: filing an appeal late without permission is invalid; Civil Procedure Rules don't apply here.

What this practically means

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The Supreme Court dismissed an application by the County Assembly of Kisumu to file an appeal late. The Court said the Civil Procedure Rules do not apply in the Supreme Court—only the Constitution, Supreme Court Act, and Supreme Court Rules matter. Filing an appeal without first getting permission to extend time makes that filing invalid. The applicant waited over two months after receiving court records and gave a weak excuse about festive season delays. The Court also noted the applicant could have filed a timely appeal and added details later, but didn't.

Executive summary

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This was an application by the County Assembly of Kisumu seeking extension of time to file a petition of appeal against a Court of Appeal judgment that had dismissed its appeal. The applicant argued that the delay was caused by the late supply of typed proceedings from the Court of Appeal, which were received on 4th December 2015, and that the festive season prevented counsel from obtaining instructions until February 2016. The application was opposed by the 3rd, 4th, 7th and 8th respondents, who argued that the delay was unexplained and that the applicant had already filed a petition of appeal without leave, which was irregular. The Supreme Court (Ibrahim and Wanjala SCJJ) dismissed the application. The Court held that the applicant had not satisfactorily explained the delay of over two months after receiving the typed proceedings. The Court rejected the applicant's reliance on the Civil Procedure Rules, reiterating that only the Constitution, Supreme Court Act, and Supreme Court Rules apply in the Supreme Court. The Court also found it implausible that counsel could not get instructions until February, given that instructions to appeal had already been given when the notice of appeal was filed in October 2015. The Court further noted that the applicant could have filed a timely petition and supplemented it later under rule 33(6) but did not. The Court confirmed that filing an appeal out of time without leave is irregular and renders the document a nullity. The Court ordered the applicant to bear the costs of the 3rd, 4th, 7th and 8th respondents.

Questions the Court framed

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

  1. 1.Whether the applicant has satisfactorily explained the delay in filing the petition of appeal to warrant extension of time
  2. 2.Whether the application for extension of time should be granted

Key legal issues

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01

Whether the applicant satisfactorily explained the delay in filing the petition of appeal after receiving typed proceedings.

Holding

The applicant did not satisfactorily explain the delay of over two months after receiving the typed proceedings on 4th December 2015 until filing the application on 12th February 2016.

Reasoning

The applicant invoked Order 50 Civil Procedure Rules to argue that time did not run between 19th December and 21st January, but the Court held that the Civil Procedure Rules are not applicable in the Supreme Court. The Court also found it implausible that counsel could not get instructions until February, given that counsel had already filed a notice of appeal and requested proceedings in October 2015, indicating instructions to appeal were already in place. The Court noted the applicant could have filed a timely petition and supplemented it later under rule 33(6), but did not do so.

p. 9
02

Whether the Civil Procedure Rules apply to proceedings before the Supreme Court.

Holding

The Civil Procedure Rules do not apply to proceedings before the Supreme Court.

Reasoning

The Court held that the regime of law governing proceedings before it is the Constitution, the Supreme Court Act, and the Supreme Court Rules, 2012. The Civil Procedure Rules are not applicable, and the applicant could not rely on Order 50 to argue that time did not run during the festive season.

p. 9
03

Whether a petition of appeal filed out of time without leave can be validated by a subsequent grant of extension of time.

Holding

A petition of appeal filed out of time without leave is a nullity and cannot be validated by a subsequent extension of time.

Reasoning

The Court adopted its reasoning in Nicholas Salat, stating that filing an appeal out of time before seeking extension is presumptive and inappropriate, and amounts to moving the Court to remedy an illegality. Such a document is unknown in law and should be struck out. The proper procedure is to annex a draft petition to the application for extension of time, not to file the petition prematurely.

p. 11

Legal principles established

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  • Only the Constitution, Supreme Court Act, and Supreme Court Rules govern Supreme Court proceedings—not the Civil Procedure Rules.
  • Filing an appeal out of time without prior leave of court renders the document a legal nullity.
  • Extension of time is an equitable remedy, not a right; the applicant must fully explain the delay.
  • A party cannot rely on Civil Procedure Rules to exclude days (e.g., festive season) in the Supreme Court.
  • If instructions to appeal existed when the notice of appeal was filed, a later claim of waiting for instructions is implausible.
  • A party can file a timely petition and supplement it later under rule 33(6) of the Supreme Court Rules.

Court orders

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  1. 1.The notice of motion dated 10th February 2016 is disallowed.
  2. 2.The applicant shall bear the costs of the 3rd, 4th, 7th and 8th respondents.

The bench

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

Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Kisumu
Civil Appeals No. 17 and 18 of 2015 (consolidated)
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Extension of time to file petition of appeal

The applicant did not satisfactorily explain the inordinate delay of two months upon receipt of the typed proceedings.

p. 10

Stay of execution of the Court of Appeal judgment

The applicant abandoned this prayer.

Deeming the petition of appeal as properly filed

No petition of appeal was found in the Court's registry records, and filing an appeal out of time without leave is irregular.

p. 11

Costs

The applicant shall bear the costs of the 3rd, 4th, 7th and 8th respondents.

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 notice of motion dated 10th February 2016 is disallowed.
p. 11 Disposition of the application
The applicant shall bear the costs of the 3rd, 4th, 7th and 8th respondents.
p. 11 Costs order
the only applicable sources of law when moving the Supreme Court are the Constitution, the Supreme Court Act, and the Supreme Court Rules, 2012. The Appellate Jurisdiction Act is not applicable when moving this Court. Neither is the Civil Procedure Code.
p. 9 Applicable law in the Supreme Court
By filing an appeal out of time before seeking extension of time, and subsequently seeking the Court to extend time and recognize such 'an appeal', is tantamount to moving the Court to remedy an illegality. This, the Court cannot do.
p. 10 Irregularity of filing appeal out of time without leave
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court
p. 2 Nature of extension of time
we agree with the respondents that the applicant has not satisfactorily explained the inordinate delay of two months upon receipt of the typed proceedings.
p. 10 Insufficient explanation of delay

Key timeline

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October 2015
Applicant filed notice of appeal and requested proceedings from Court of Appeal.
2015-12-04
Applicant received typed proceedings from Court of Appeal.
2016-02-10
Applicant filed notice of motion seeking extension of time to file appeal.
2016-02-12
Applicant filed the application (notice of motion) – actual filing date.
Not specified in analysis
Judgment

Practical implications

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For lawyers

Strict adherence to Supreme Court rules

Never rely on the Civil Procedure Rules when moving the Supreme Court. Use only the Constitution, Supreme Court Act, and Supreme Court Rules 2012. If you file an appeal out of time, you must first obtain leave via a separate application—annex a draft petition, do not file the petition itself. Filing prematurely makes the petition a nullity that cannot be cured later.

For businesses

Deadlines in Supreme Court appeals are strict

If your business is involved in a Supreme Court appeal, ensure your legal team files the petition within the prescribed time. Do not assume that festive seasons or other holidays extend deadlines—the Civil Procedure Rules do not apply. Any delay must be fully explained, and you cannot file the appeal first and ask for permission later.

For individuals

Get permission before filing late appeals

If you need to appeal to the Supreme Court after the deadline, you must first apply for an extension of time. Do not file your appeal papers until the Court grants that extension. Filing early without permission makes your appeal invalid. Also, you cannot use the excuse of waiting for instructions if you already filed a notice of appeal—that shows you had instructions.

Frequently asked questions

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Can I use the Civil Procedure Rules in the Supreme Court of Kenya?+

No. The Supreme Court only applies the Constitution, the Supreme Court Act, and the Supreme Court Rules 2012. The Civil Procedure Rules do not apply there, so you cannot rely on them to argue that time stopped running during holidays.

What happens if I file an appeal late without permission in Kenya's Supreme Court?+

The filing is invalid and treated as a nullity. You must first apply for extension of time and get the Court's permission before filing the appeal. Filing the appeal prematurely cannot be fixed later.

How do I apply for extension of time to appeal to the Supreme Court of Kenya?+

File a notice of motion explaining the delay, attach a draft petition of appeal, and show good cause. You must not file the actual petition until the Court grants the extension. The Court considers the length of delay, reasons, prejudice to the other side, and public interest.

Can I blame festive season delays for missing a Supreme Court deadline in Kenya?+

No. The Supreme Court does not apply the Civil Procedure Rules that exclude festive days. You must explain the entire delay convincingly. In this case, the Court rejected the festive season excuse because the applicant had already received typed proceedings and had instructions to appeal.

Later judgments citing this (25)

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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, "County Executive of Kisumu v County Government of Kisumu & 8 others", Case Analysis (2017). Civil Application 3 of 2016. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2017/16/eng@2017-04-12

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