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Supreme CourtDismissedApplication 6 of 2019

Harun Osoro Nyamboki v Peter Mujunga Gathuru

Supreme Court of Kenya
30 April 2019
Philomena Mbete MwiluP. M. MwiluMohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. Lenaola
819 words in judgment
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The bottom line

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Supreme Court dismisses appeal for 4-year delay; must explain delay credibly.

What this practically means

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The Supreme Court refused to extend time for an appeal because the applicant took over four years to file it. He claimed he mistakenly thought his lawyers had done it, but the Court found that excuse not believable. If you miss a court deadline, you must give a reasonable and credible reason for the delay, or your application will be thrown out.

Executive summary

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This was an application by John Mwangi Githinji seeking an extension of time to file an appeal out of time against a Court of Appeal judgment delivered on 27th May 2016 in Civil Appeal No. 184 of 2004. The applicant argued that the delay of four years and two months was caused by his mistaken belief that his former advocates had filed the notice of appeal, and that he only discovered the failure in December 2018. He also relied on the decision in Geoffrey Asanyo & 3 Others v. Attorney General as providing a new opportunity to seek justice. The respondent opposed the application, arguing that the delay was inordinate and inexcusable, that the court lacked jurisdiction as certification applications had already been dismissed, and that the application was an abuse of process. The Supreme Court, in a unanimous decision, dismissed the application. The Court applied the principles from Nicholas Kiptoo Korir Salat v. IEBC and Hassan Nyanje Charo v. Khatib Mwashetani, which require a reasonable and credible explanation for delay, consideration of extenuating circumstances, and a finding that the delay is not inordinate or indicative of slothfulness. The Court found that the four-year and two-month delay was neither adequately explained nor credible, and was both untenable and unreasonable. The applicant was ordered to bear the costs of the application.

Questions the Court framed

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

  1. 1.Whether the explanation for the delay in filing the notice of appeal is reasonable and credible
  2. 2.Whether there exist extenuating circumstances to enable the Court exercise its unfettered jurisdiction
  3. 3.Whether the delay is so inordinate as to leave no doubt that the applicant has been slothful and filed the application as an afterthought

Key legal issues

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01

Whether the applicant provided a reasonable and credible explanation for the four-year and two-month delay in filing the notice of appeal.

Holding

The delay was not adequately explained and the justification offered was not credible.

Reasoning

The applicant claimed he mistakenly believed his former advocates had filed the notice of appeal, and only became aware of the failure in December 2018. The Court found this explanation insufficient for a delay of over four years, noting that the delay was both untenable and unreasonable. The Court applied the principles from Nicholas Kiptoo Korir Salat v. IEBC and Hassan Nyanje Charo v. Khatib Mwashetani, which require a reasonable and credible explanation, consideration of extenuating circumstances, and a finding that the delay is not inordinate or indicative of slothfulness.

p. 3

Legal principles established

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  • To get more time, you must explain the delay reasonably and credibly.
  • The Court considers whether there are extenuating circumstances beyond your control.
  • A very long delay (over 4 years) is seen as slothful unless strongly justified.
  • Ignorance of your lawyer's actions is not a good excuse for a multi-year delay.
  • The Court will not allow an extension if it appears the application was an afterthought.

Court orders

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  1. 1.The application dated 20th February, 2019 and filed on 22nd February, 2019 is hereby dismissed.
  2. 2.The Applicant shall bear the costs of this application.

The bench

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

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
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
Civil Appeal No. 184 of 2004
Jurisdiction invoked
Section 3 of the Supreme Court Act and Rules 3(2) & (5), 31, 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 27th May, 2016 the Court of Appeal in Civil Appeal No. 184 of 2004

The four year (4) and two month (2) delay has neither been adequately explained, nor is the justification offered by the applicant credible. The delay is both untenable and unreasonable.

p. 3

Costs

The Applicant shall bear the costs of this application.

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 determining such an application, the Court has to consider whether the explanation given for any delay is reasonable and credible; whether there also exist extenuating circumstances to enable the Court exercise its unfettered jurisdiction; and that the delay, in any event, should not be so inordinate as to leave no doubt, that an applicant has been slothful, and filed such an application as an after-thought.
p. 3 Extension of time criteria
In the present case, the four year (4) and two month (2) has neither been adequately explained, nor is the justification offered by the applicant credible. The delay is both untenable and unreasonable.
p. 3 Application of extension of time criteria
The application dated 20th February, 2019 and filed on 22nd February, 2019 is hereby dismissed.
p. 3 Final order
The Applicant shall bear the costs of this application.
p. 3 Costs order

Key timeline

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2016-05-27
Court of Appeal delivered judgment in Civil Appeal No. 184 of 2004.
2019-02-22
Applicant filed application for extension of time to appeal.
Dismissal date not specified
Supreme Court dismissed the application for extension of time.

Practical implications

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For lawyers

Be diligent with client's deadlines

When representing clients, ensure you promptly file notices of appeal. The Court will not accept a client's claim that they mistakenly believed you filed it as a credible excuse for a delay of over four years. To avoid such applications, maintain clear communication with clients about filing status and always file within the prescribed time.

For businesses

Act quickly on court decisions

If your business loses a court case and you want to appeal, do not rely on assumptions or oral instructions to lawyers. Confirm that the notice of appeal is filed within the deadline. A delay of several years will likely be fatal, and the Court will not grant an extension unless you have a very strong, documented reason.

For individuals

Don't assume your lawyer filed

If you are a party in a case, follow up with your lawyer to confirm that required documents have been filed on time. Trusting blindly that your lawyer has acted can lead to a hopeless delay. The Court expects you to take personal interest in your case, especially when important deadlines are involved.

Frequently asked questions

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

There is no fixed maximum, but the longer you wait, the harder it becomes. In this case, a 4-year delay was rejected. You must provide a reasonable and credible explanation for any delay, and the Court will decide if it is acceptable.

What happens if I miss the appeal deadline in Kenya?+

You can apply for an extension of time. The Court will consider your reason for the delay, whether there are special circumstances, and whether the delay is so long that it shows you were not serious. If your explanation is not credible, the application will be dismissed and you may have to pay costs.

Can I blame my lawyer for missing the appeal deadline in Kenya?+

Maybe, but only if you act quickly. In this case, the applicant claimed his lawyer failed to file, but the Court found the 4-year delay unreasonable. If you discover your lawyer's mistake, you must apply promptly and provide evidence of the error.

What is the test for extension of time in the Supreme Court of Kenya?+

The Court applies three tests: (1) Is the explanation for delay reasonable and credible? (2) Are there extenuating circumstances? (3) Is the delay so inordinate that it shows slothfulness or an afterthought? All three must be satisfied in your favour to get an extension.

Later judgments citing this (15)

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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, "Harun Osoro Nyamboki v Peter Mujunga Gathuru", Case Analysis (2019). Application 6 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/44/eng@2019-04-30

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