Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtDismissedCivil Application 1 of 2017

Hellen Cheruto & another v Sisilia Mwikali Kirwa

Supreme Court of Kenya
8 November 2018
1,422 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Court rejects late appeal because applicant blamed lawyer but gave no proof of filing fees.

What this practically means

#

The Supreme Court dismissed an application to file an appeal out of time. The applicant claimed her lawyer failed to file the appeal, but the receipts she provided were for legal fees in the lower court, not for the Supreme Court. She also waited nearly a year after learning of the judgment before applying. The Court said extension of time is a privilege, not a right, and requires a clear explanation for the delay.

Executive summary

#
This was an application for extension of time to file a Notice of Appeal and Memorandum of Appeal out of time against a Court of Appeal judgment dated 6th November 2015. The dispute originated from a succession cause where the High Court revoked a grant of letters of administration and redistributed the estate, finding the deceased had left a valid will. The Court of Appeal dismissed the respondent's appeal. The applicants sought to challenge that dismissal but delayed filing their appeal. They attributed the delay to their advocate's failure to file the appeal as instructed. The Supreme Court applied the principles from Nicholas Kiptoo Arap Korir Salat v. IEBC, holding that extension of time is an equitable remedy requiring the applicant to demonstrate reasonable cause for delay and that the application was brought without undue delay. The Court found that the applicants failed to provide evidence that the payments made were for filing fees before the Supreme Court, and that the application was filed almost a year after they became aware of the judgment. The application was dismissed with no order as to costs since it was unopposed.

Questions the Court framed

#

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

  1. 1.whether the respondents are entitled to the prayer for enlargement of time to file an Appeal out of time

Key legal issues

#
01

Whether the applicants demonstrated reasonable cause for the delay in filing the appeal.

Holding

The applicants failed to demonstrate reasonable cause because they attributed the delay to their advocate but provided no evidence linking the payments to filing fees before the Supreme Court.

Reasoning

The Court examined the applicants' claim that their advocate misled them into believing an appeal was filed. The receipts attached (HJ2a and HJ2b) were for legal fees in the Court of Appeal, not for filing an appeal before the Supreme Court. The Court found this insufficient to satisfy the requirement of demonstrating reasonable cause.

02

Whether the application was brought without undue delay.

Holding

The application was not brought without undue delay because it was filed almost a year after the applicants became aware of the Court of Appeal judgment.

Reasoning

The Court noted that the applicants' letter requesting typed proceedings was dated 1st March 2016, confirming they knew of the judgment by then. The application was filed on 18th January 2017, nearly a year later. The applicants failed to explain this delay.

Legal principles established

#
  • Extension of time is an equitable remedy, not an automatic right, granted at the Court's discretion.
  • The applicant must prove reasonable cause for the delay with clear evidence.
  • The application must be filed without undue delay after the judgment is known.
  • Blaming an advocate without proof of specific instructions or payments is insufficient.
  • Receipts for legal fees in a lower court do not prove steps were taken to file an appeal in the Supreme Court.

Court orders

#
  1. 1.The application dated 18th January, 2017 is hereby dismissed.
  2. 2.There shall be no Order as to costs.

The bench

#

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

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority

Wrote the judgment

majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
S. N. NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
No. 60 of 2014
Jurisdiction invoked
Rule 53 of the Supreme Court Rules 2016

Relief refused

#

Extension of time to file Notice of Appeal and Memorandum of Appeal

Applicants failed to demonstrate reasonable cause for delay and that the application was brought without undue delay.

Costs

As the application is undefended, 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.

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. 5 Principles for extension of time
the applicants have failed to lay a basis, to the satisfaction of the Court for Orders of enlargement of time. Consequently it is our opinion that the application dated 18th January, 2017 cannot be allowed and is hereby dismissed.
p. 5 Final orders dismissing the application
As the application is undefended, there shall be no Order as to costs.
p. 5 Costs order

Key timeline

#
2015-11-06
Court of Appeal dismisses the applicant's appeal in a succession dispute.
2016-03-01
Applicant requests typed proceedings, confirming she knew of the judgment.
2017-01-18
Applicant files application for extension of time to appeal to the Supreme Court.
2018
Supreme Court dismisses the application, finding no reasonable cause for delay.

Practical implications

#
For lawyers

Prove delay cause with specific evidence

When seeking extension of time, do not merely blame your advocate. Attach concrete proof such as payment receipts for Supreme Court filing fees, correspondence with the advocate, or an affidavit from the advocate confirming the error. The Court will reject vague claims.

For businesses

Act quickly after an adverse judgment

If you lose a case and want to appeal, move promptly. Waiting nearly a year after learning of the judgment, even if you blame your lawyer, will likely result in dismissal. Set internal deadlines to file appeals within 14 days and monitor your legal team's progress.

For individuals

Don't rely on lawyer promises alone

If your lawyer says an appeal has been filed, ask for a copy of the receipt or the filed document. Keep your own records of payments and instructions. The Court will not excuse a delay just because you trusted your advocate without verifying.

Frequently asked questions

#
Can I get more time to appeal in Kenya if my lawyer made a mistake?+

Yes, but you must prove the mistake with clear evidence, like receipts for Supreme Court filing fees or a lawyer's affidavit. Simply blaming your lawyer without proof is not enough. You must also apply quickly after discovering the error.

What is the deadline to file an appeal in the Supreme Court of Kenya?+

You must file a Notice of Appeal within 14 days of the judgment you want to challenge. If you miss that deadline, you can apply for extension of time, but you must show good reason for the delay and apply without further delay.

What happens if I wait too long to appeal in Kenya?+

The court may dismiss your application for extension of time. In this case, waiting nearly a year after knowing the judgment was considered too long. The court expects you to act promptly, even if you are gathering documents or changing lawyers.

Is extension of time a right in Kenyan courts?+

No, it is not a right. It is an equitable remedy that the court can grant at its discretion. You must convince the court that you had a reasonable cause for the delay and that you applied without undue delay. The court will not grant it automatically.

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Hellen Cheruto & another v Sisilia Mwikali Kirwa", Case Analysis (2018). Civil Application 1 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/68/eng@2018-11-08

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