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Supreme CourtDismissedMiscellaneous Application 18 of 2018

Damaris Njeri Mwangi & 2 others (As the Administrators of the Estate of Kenneth K Mwangi - Deceased) v City County of Nairobi & another; Fidelity Commercial Bank (Interested Party)

Supreme Court of Kenya
29 March 2019
1,120 words in judgment
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AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Supreme Court dismissed extension of time because applicants failed to explain a 3-month delay.

What this practically means

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The Supreme Court rejected a request for more time to file an appeal. The applicants waited nearly three months after getting court records before asking for an extension. The court said that asking for extra time is a matter of fairness, and you must account for every part of the delay. Since the applicants did not explain why they waited so long after the records were ready, their request was denied.

Executive summary

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This was an application by the Applicants seeking extension of time to file an appeal out of time against the judgment of the Court of Appeal in Civil Appeal No. 228 of 2008. The application was brought under Rule 53 of the Supreme Court Rules, 2012, which grants the Court discretion to extend time. The Applicants attributed the delay to the late receipt of certified typed proceedings from the Court of Appeal, arguing that the delay of less than three months was not inordinate and that no prejudice would be suffered by the Respondents. The 2nd Respondent opposed the application, raising a preliminary objection that the Court lacked jurisdiction because the Applicants had not obtained certification under Rule 24(1) of the Supreme Court Rules, 2012, and also argued that the delay was inordinate and unexplained. The Supreme Court, in a unanimous decision, dismissed the application. The Court held that the Applicants failed to satisfactorily explain the nearly three-month delay between when the typed proceedings were ready for collection (15th March 2018) and when they filed the application (3rd July 2018). Citing Nicholas Kiptoo Arap Korir Salat v IEBC, the Court reiterated that extension of time is a creature of equity and requires equitable conduct. The Court distinguished Aviation & Allied Workers Union Kenya v Kenya Airways, where a similar delay was excused because the applicants accounted for the entire period. On the preliminary objection, the Court held that the issue of certification was premature and could only be determined when a substantive Petition is before the Court. The Court also noted that the Applicants improperly invoked the Civil Procedure Rules, which are not applicable in the Supreme Court. No order as to costs was made.

Questions the Court framed

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

  1. 1.Whether the delay in filing the intended appeal was satisfactorily explained to warrant extension of time under Rule 53 of the Supreme Court Rules, 2012.
  2. 2.Whether the preliminary objection on lack of jurisdiction due to absence of certification was properly raised at this stage.

Key legal issues

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01

Whether the delay in filing the application for extension of time was satisfactorily explained.

Holding

The delay was not satisfactorily explained because the applicants did not account for the nearly 3 months between when the typed proceedings were ready for collection and when they filed the application.

Reasoning

The court noted that the typed proceedings were ready for collection from 15th March 2018, but the applicants filed the application on 3rd July 2018, a delay of nearly 3 months. The applicants merely stated they made repeated inquiries without providing specific dates or evidence of follow-ups. Citing Nicholas Kiptoo Arap Korir Salat v IEBC, the court held that extension of time is a creature of equity and requires equitable conduct. The court distinguished Aviation & Allied Workers Union Kenya v Kenya Airways, where a 4-month delay was excused because the applicants accounted for the entire period. Here, the applicants failed to explain the gap after the proceedings were ready.

02

Whether the preliminary objection on lack of jurisdiction due to absence of certification was properly raised at the extension of time stage.

Holding

The objection was premature and could only be determined when a Petition is properly before the Court.

Reasoning

The 2nd Respondent argued that the Court lacked jurisdiction because the applicants had not obtained certification under Rule 24(1) of the Supreme Court Rules, 2012. The court held that at the stage of an application for extension of time, there is no Petition before it to assess whether the intended appeal raises matters of constitutional interpretation and application. The jurisdictional question regarding certification is best determined when the substantive Petition is filed and specific issues are presented.

Legal principles established

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  • Extension of time is a discretionary power based on equity, requiring fair conduct from the applicant.
  • An applicant must account for the entire period of delay, not just part of it.
  • A delay of four months to obtain typed proceedings can be excused if fully explained.
  • The question of whether an appeal raises constitutional issues is premature at the extension of time stage.
  • The Civil Procedure Rules do not apply in the Supreme Court; only the Supreme Court Rules govern.

Court orders

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  1. 1.The application dated 3 July, 2018 is hereby dismissed.
  2. 2.There shall be no order as to costs.

The bench

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

majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal
Civil Appeal No. 228 of 2008
Jurisdiction invoked
Article 163(8) of the Constitution; Section 23(2)(b) of the Supreme Court Act, 2011; Rules 21, 23, 33, and 53 of the Supreme Court Rules, 2012

Relief refused

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Extension of time to file an appeal out of time against the Judgment and Orders of the Court of Appeal in Civil Appeal No. 228 of 2008.

The delay was not satisfactorily explained; the applicants did not account for the nearly 3 months delay from when typed proceedings were ready for collection.

Costs

There shall be no order as to costs.

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.

In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014 eKLR] this Court held that the discretionary power provided for under Rule 53 will not be exercised where one has not acted equitably since the extension of time itself is a creature of equity.
p. 4 Principle governing extension of time
The Applicants here do not account sufficiently for the nearly 3 months delay (from the date when the typed proceedings were ready for collection) in filing the present Application other than to state that they made repeated inquires to follow up on the status of the typed proceedings.
p. 4 Failure to explain delay
That matter is premature and can only be properly determined when there is a Petition before the Court routing specific issues that may raise jurisdictional questions.
p. 4 Prematurity of jurisdictional objection on certification

Key timeline

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15 March 2018
Typed proceedings from the Court of Appeal were ready for collection.
3 July 2018
Applicants filed the application for extension of time to appeal.
Not specified
Supreme Court dismisses the application for extension of time.

Practical implications

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For lawyers

Account for every day of delay

When seeking extension of time under Rule 53, you must provide a detailed, day-by-day explanation for the entire delay. Vague statements like 'repeated inquiries' without specific dates or evidence will not satisfy the court. Prepare a sworn affidavit with a clear timeline and supporting documents, especially if proceedings were delayed by the court registry.

For businesses

Act promptly on legal deadlines

If your business is involved in litigation and misses an appeal deadline, you cannot rely on general excuses. The court expects you to monitor the progress of typed proceedings and file your application as soon as the records are available. A delay of even a few months after records are ready may be fatal, so instruct your lawyers to act without unnecessary waiting.

For individuals

Don't wait after getting court records

If you are appealing a decision in a succession or other case, do not assume you can ask for more time later. Once the court tells you the typed proceedings are ready, you must file your appeal quickly. Waiting nearly three months after that, as happened here, can lead to your request being rejected, and you may lose your chance to appeal.

Frequently asked questions

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What is extension of time in the Kenyan Supreme Court?+

Extension of time is a request to file an appeal after the normal deadline has passed. The Supreme Court can grant it under Rule 53 of its Rules, but only if you show good reason for the delay and act fairly. You must explain every part of the delay.

How long can you delay filing an appeal in Kenya?+

There is no fixed maximum delay, but you must explain the entire period. In this case, a delay of nearly three months after typed proceedings were ready was not excused because the applicants did not account for that time. The court expects prompt action once records are available.

What happens if you miss the deadline to appeal in Kenya?+

You can apply for extension of time, but the court will only grant it if you show equitable conduct and a full explanation for the delay. If you fail to account for any part of the delay, as in this case, your application will be dismissed and you lose the right to appeal.

Can you challenge jurisdiction during an extension of time application in Kenya?+

No, the Supreme Court held that a preliminary objection about lack of jurisdiction (e.g., missing certification) is premature at the extension of time stage. That issue can only be decided when a substantive petition is filed and the court can assess the specific constitutional questions raised.

Later judgments citing this (1)

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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, "Damaris Njeri Mwangi & 2 others (As the Administrators of the Estate of Kenneth K Mwangi - Deceased) v City County of Nairobi & another; Fidelity Commercial Bank (Interested Party)", Case Analysis (2019). Miscellaneous Application 18 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/35/eng@2019-03-29

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