Fanikiwa Limited v Sirikwa Squatters Group & 20 others
The bottom line
#Supreme Court keeps late filings where delay is minor and justice requires it.
What this practically means
#The Supreme Court dismissed an application by Sirikwa Squatters Group to strike out several documents from a case. The court kept a replying affidavit filed after the deadline because the delay was short and fairness demanded it. It also rejected other prayers because earlier court decisions had already made them pointless. The court emphasized that while its rules matter, minor delays should not block justice.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 8th respondent's replying affidavit dated January 20, 2023 should be struck out for being filed out of time
- 2.Whether the application dated January 9, 2023 and the affidavits thereto should be struck out
- 3.Whether the submissions by John K Sitienei & 9 others dated January 25, 2023 should be struck out
Key legal issues
#Whether a replying affidavit filed out of time should be struck out for non-compliance with the Supreme Court Rules
The court declined to strike out the replying affidavit, finding the delay not inordinate and exercising its discretion in the interest of justice.
The court acknowledged the importance of strict compliance with its rules and practice directions. However, it considered the specific circumstances of the case, noting that the delay by the 8th respondent in filing its response was not inordinate. Invoking its inherent jurisdiction and the principle of judicial restraint, as established in the Raila Amolo Odinga case, the court opted to allow the document to remain on record in the interest of justice, rather than expunging it.
Whether an application that has already been determined by the court can be struck out in a subsequent application
The court declined to strike out the application as it had already been disallowed in a prior ruling, rendering the prayer moot.
The court noted that the notice of motion dated January 9, 2023, which the applicant sought to strike out, had already been disallowed by the court in its ruling dated June 16, 2023 in the consolidated petitions. Consequently, the prayer to strike it out was overtaken by events and could not be granted.
Whether submissions filed by parties not yet joined to the proceedings should be struck out
The court declined to strike out the submissions, as the joinder application by those parties had already been disallowed in a prior ruling.
The court observed that the notice of motion for joinder filed by John K Sitienei and 9 others had been disallowed in its ruling of June 16, 2023. Since the parties were not admitted to the appeal, the issue of their submissions being on record was rendered moot by the prior determination.
Legal principles established
#- Strict compliance with court rules is important but not absolute; courts can excuse minor delays in the interests of justice.
- Where a delay in filing documents is not inordinate, the court may decline to strike them out, following the judicial restraint principle.
- A prayer to strike out an application becomes moot if the application was already disallowed in a prior ruling.
- Submissions filed by parties who were never joined to the proceedings become moot once their joinder is denied.
- The Supreme Court has inherent discretion to balance procedural timelines with substantive justice.
Court orders
#- 1.The notice of motion application dated January 30, 2023 is hereby dismissed.
- 2.There shall be no order as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- sections 14(5), 21(2) and (3) of the Supreme Court Act and rules 26, 31, 32, 36 and 38 of the Supreme Court Rules
- Consolidated with
- Petition No 35 (E038) of 2022
Relief refused
#Striking out the 8th respondent's replying affidavit dated January 20, 2023
The delay was not inordinate and in the interest of justice the court declined to strike it out
Striking out the application dated January 9, 2023 and the affidavits thereto
The application had already been disallowed by the court in a prior ruling
Striking out the submissions by John K Sitienei & 9 others dated January 25, 2023
The joinder application by those parties had already been disallowed by the court in a prior ruling
Costs
There shall be no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
While we emphasize the importance of strict compliance of this court's rules and practice directions, we find that in the circumstances the delay by the 8th respondent in filing its response to the petition of appeal dated November 21, 2022 is not inordinate and in the interest of justice we decline to strike out the replying affidavit.
The notice of motion application dated January 30, 2023 is hereby dismissed.
There shall be no order as to costs.
Key timeline
#Practical implications
#Don't rush to strike out late filings
When opposing counsel files a document a few days late, think twice before moving to strike it out. The Supreme Court will keep late filings if the delay is short and justice favors admission. Instead, focus on the merits. If a prior ruling already rejected the opponent's application, that prayer is dead – don't waste time re-litigating it.
Minor procedural slip won't kill your case
If your legal team files a document a few days past a Supreme Court deadline, don't panic. This ruling shows the court may still accept it if the delay is minor. Ensure your lawyer explains the short duration and argues that striking it out would harm the interests of justice. But still aim to comply – this is discretion, not a free pass.
Court prioritizes fairness over strict deadlines
If you're a party in a Supreme Court case and you file something late, you may still get a fair hearing. The court will look at how late it is and whether striking it out would be unjust. But don't rely on this regularly – always file on time. If you miss a deadline, ask your lawyer to highlight that the delay was short and not deliberate.
Frequently asked questions
#Can the Supreme Court of Kenya accept late-filed documents?+
Yes. As this ruling shows, if the delay is short and not deliberate, the court may keep the document in the interest of justice. Strict compliance with rules is important, but it is not absolute.
What happens if an application is already decided before I ask to strike it out in Kenya?+
Your request becomes moot – the court cannot strike out something that is already gone. In this case, the application had been disallowed in a prior ruling, so the strike-out prayer was pointless.
How do I join a Supreme Court case in Kenya as an interested party?+
You must file a formal joinder application. If it is rejected, you are not part of the case, and any submissions you file will be disregarded. The court will not later strike them out – they become moot.
Are costs always awarded when an application is dismissed in Kenya's Supreme Court?+
No. The court has discretion. Here, the court ordered 'no order as to costs' even though the strike-out application was dismissed. This means each party bore its own costs.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kinyamu v Kinyamu & 3 others (Environment and Land Appeal E004 of 2023) [2024] KEELC 7127 (KLR)[2024] KEELC 7127 (KLR)30 Oct 2024
- Ashitiba v Akafwale (Environment and Land Appeal E027 of 2023) [2024] KEELC 6038 (KLR)[2024] KEELC 6038 (KLR)23 Sept 2024
Cite this brief
#Cite this brief
Caselaw, "Fanikiwa Limited v Sirikwa Squatters Group & 20 others", Case Analysis (2023). Petition 32 (E036) & 35 (E038) of 2022 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/58/eng@2023-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.