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Supreme CourtDismissedPetition (Application) 38 of 2018

Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others

Supreme Court of Kenya
29 April 2019
David Kenani MaragaD. K. MaragaMohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. Lenaola
3,972 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Supreme Court can excuse late service of a Notice of Appeal if no prejudice results.

What this practically means

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The Supreme Court of Kenya ruled that a Notice of Appeal served 19 days late is not automatically fatal to an appeal. The Court has discretion to excuse the delay if the other side is not prejudiced. Here, the respondents suffered no harm because the appeal itself was filed and served on time. The Court also said that missing lower court records in an appeal file can be fixed later by filing a Supplementary Record, especially if the delay was caused by the court registry.

Executive summary

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This ruling by the Supreme Court of Kenya (Maraga CJ, Ibrahim, Wanjala, Ndungu & Lenaola SCJJ) dismissed the 1st respondent's application to strike out the appellant's Notice of Appeal and Record of Appeal. The appellant had appealed against a Court of Appeal judgment that dismissed her election petition appeal for lack of jurisdiction. The 1st respondent sought to strike out the appeal on two grounds: first, that the Notice of Appeal was served 19 days late, contrary to Rule 32 of the Supreme Court Rules requiring service within 7 days; and second, that the Record of Appeal lacked the record of proceedings from the Court of Appeal. The Court held that while a Notice of Appeal must be filed and served in accordance with the Rules, it has discretion to excuse delay where no prejudice is shown. The Court found no prejudice to the respondents because until an appeal is filed, there is no case to prepare for. On the second issue, the Court held that failure to include the record of proceedings does not automatically render the appeal fatal, as Rule 33(6) allows omitted documents to be filed later in a Supplementary Record. The Court noted that the appellant had made persistent inquiries for the proceedings and the delay was attributable to the Court of Appeal registry. The Court also noted that section 14(5) of the Supreme Court Act had been declared unconstitutional in Samuel Kamau Macharia. The application was dismissed with each party bearing its own costs.

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 service of the Notice of Appeal is fatal
  2. 2.whether lack of the record of proceedings of the Court of Appeal is fatal to the Record of Appeal

Key legal issues

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01

Whether delay in service of the Notice of Appeal is fatal to the appeal.

Holding

The delay in service of the Notice of Appeal is not fatal where no prejudice is shown and the appeal was timely filed and served.

Reasoning

The Court acknowledged that the Notice of Appeal was served 19 days late, but distinguished the case from Obado where the notice was never served. The Court found no prejudice to the respondents because until an appeal is filed, there is no case to prepare for. The Court also noted the constitutional nature of the matter and exercised its discretion to excuse the delay in the interest of justice.

p. 8
02

Whether the Record of Appeal is fatally defective for lacking the record of proceedings of the Court of Appeal.

Holding

The absence of the record of proceedings is not fatal to the Record of Appeal, especially where the omission is due to delay by the lower court in typing proceedings.

Reasoning

The Court relied on Rule 33(4) and (6) of the Supreme Court Rules, which allow omitted documents to be filed later in a Supplementary Record. The Court found that the appellant had made persistent inquiries for the proceedings and the delay was attributable to the Court of Appeal registry, not the appellant. The Court also noted its discretion under Rule 33(5) to determine which documents are necessary.

p. 9

Legal principles established

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  • A Notice of Appeal must be filed and served according to the Rules, but the Court may excuse late service if no prejudice is shown.
  • Failure to include the lower court's record of proceedings in the Record of Appeal is not automatically fatal.
  • Omitted documents in a Record of Appeal may be filed later in a Supplementary Record under Rule 33(6).
  • The Court considers the constitutional nature of a matter when exercising discretion to excuse procedural delays.
  • Prejudice to a respondent is assessed based on whether they had a case to prepare for at the time of the delay.

Court orders

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  1. 1.The Notice of Motion dated 12th November 2018 is hereby dismissed.
  2. 2.Each party shall bear its/her own costs.

The bench

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

David Kenani Maraga
majority

Wrote the judgment

Mohammed Khadhar Ibrahim
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
Election Petition Appeal No. 5 of 2018 as consolidated with Election Petition No. 1 of 2017
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Striking out of the Notice of Appeal

The delay in service was excused as no prejudice was occasioned and the appeal was timely filed and served.

p. 8

Striking out of the Record of Appeal

The absence of the record of proceedings was not the appellant's fault but due to delay at the Court of Appeal in typing proceedings, and the Rules allow for later filing of omitted documents.

p. 9

Costs

Each party shall bear its/her own 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.

We reiterate that a Notice of Appeal must be filed and served in accordance with the Rules. If a Notice of Appeal is to serve its legitimate role as a notice giver to the respondents, then it cannot be filed and not served.
p. 7 Service of Notice of Appeal
It therefore emerges that failure to include the 'record of proceedings of the court of Appeal' in the Record of Appeal does not automatically render the appeal filed before this Court fatal.
p. 8 Contents of Record of Appeal
The Notice of Motion dated 12th November 2018 is hereby dismissed.
p. 10 Final Orders
Each party shall bear its/her own costs.
p. 10 Costs Order

Key timeline

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2018-11-12
Appellant filed Notice of Motion to strike out the appeal.
2019
Supreme Court delivered ruling dismissing the application.

Practical implications

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For lawyers

Procedural delays not always fatal

When serving a Notice of Appeal late, argue lack of prejudice to the respondent, especially if the appeal itself was timely filed. Also, if lower court records are missing, promptly file a Supplementary Record. Cite this case to show the Court's willingness to excuse delays in constitutional matters.

For businesses

Court flexibility on deadlines

If you are involved in a case and the other side misses a procedural deadline, do not assume the case will be thrown out. The Court may allow the case to proceed if you cannot show you were harmed by the delay. Focus on actual prejudice, not just technical breaches.

For individuals

Don't give up on late filings

If you or your lawyer miss a deadline to serve a Notice of Appeal, the case may still go forward. The Supreme Court can excuse the delay if the other side was not unfairly disadvantaged. Also, missing court records can be added later. Always ask your lawyer to check if a remedy is available.

Frequently asked questions

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Can a late Notice of Appeal be accepted in Kenya's Supreme Court?+

Yes, the Supreme Court can accept a Notice of Appeal served late if the other party is not prejudiced. In this case, a 19-day delay was excused because the appeal itself was filed on time and the respondents had no case to prepare for yet.

What happens if the Record of Appeal is missing court proceedings in Kenya?+

It is not automatically fatal. You can file a Supplementary Record later to include the missing proceedings, especially if the delay was caused by the lower court registry. The Supreme Court has discretion to allow this.

What is a Supplementary Record of Appeal in Kenya?+

A Supplementary Record is a legal document filed after the main Record of Appeal to add documents that were omitted. Under Rule 33(6) of the Supreme Court Rules, this is allowed to correct omissions without killing the appeal.

Does the Supreme Court of Kenya always strike out appeals for procedural errors?+

No. The Court has discretion to overlook procedural errors like late service or missing documents if no prejudice is caused to the other side. This is especially true in constitutional or election matters where justice is prioritized.

Later judgments citing this (19)

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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, "Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others", Case Analysis (2019). Petition (Application) 38 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/42/eng@2019-04-29

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