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Supreme CourtAllowedCivil Application 8 of 2015· [2017] KESC 24 (KLR)

Irungu v Mbaria & another

Supreme Court of Kenya
23 March 2017
352 words in judgment
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The bottom line

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You cannot delay an appeal just because you lack certified court records; the rules offer workarounds.

What this practically means

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The Supreme Court struck out a notice of appeal because the respondents failed to file their petition within 30 days. They blamed missing certified copies of proceedings, but the court said that's not a valid excuse. The Supreme Court Rules let you apply to omit missing documents or add them later within 15 days. Since the respondents didn't use these options, their delay was unjustified, and the appeal was dismissed with costs.

Executive summary

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This is a ruling on an application by Livingstone Maina Ombete (the applicant) to strike out a notice of appeal filed by John Mwangi Githinji & 2 Others (the respondents) in the Supreme Court. The respondents had filed a notice of appeal on 31st March 2015 but never filed a petition of appeal within the 30-day period prescribed by the Supreme Court Rules. The respondents argued that they could not obtain complete certified copies of the proceedings and judgment from the Court of Appeal within the prescribed time, and that they had lodged an application for leave to appeal out of time in the Court of Appeal, which was still pending. The Supreme Court, composed of Justices J. B. Ojwang and S. N. Ndungu, allowed the application. The court held that the lack of complete certified copies of proceedings is not a sufficient reason for the delay, because Rule 33(5) of the Supreme Court Rules allows a party to apply to omit a document from the record of appeal, and Rule 33(6) allows a party to file additional documents within 15 days of filing without leave of court. The respondents failed to utilize these provisions and provided no other sufficient grounds for their failure to file the appeal. The court struck out the notice of appeal and awarded costs to the applicant.

Key legal issues

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01

Whether failure to file a petition of appeal within 30 days due to lack of certified copies of proceedings is excusable.

Holding

It is not excusable because the Supreme Court Rules allow a party to omit documents from the record of appeal upon application (Rule 33(5)) and to file additional documents within 15 days without leave (Rule 33(6)).

Reasoning

The respondents filed a notice of appeal on 31st March 2015 but never filed a petition of appeal. They argued they could not obtain certified copies of proceedings and judgment from the Court of Appeal. The Supreme Court found this insufficient because the Rules provide alternatives: a party can apply to omit a document from the record under Rule 33(5) or file additional documents within 15 days under Rule 33(6). The respondents did not pursue these options, and their application for leave to appeal out of time in the Court of Appeal was still pending. The court held that the respondents failed to provide sufficient grounds for their delay, and the appeal had not been filed up to the date of the application.

Legal principles established

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  • Failure to file a petition of appeal within 30 days is not excused by lack of certified copies of proceedings.
  • Rule 33(5) allows a party to apply to omit a document from the record of appeal.
  • Rule 33(6) permits filing additional documents within 15 days without court leave.
  • A pending application for leave to appeal out of time does not stop the Supreme Court from striking out a notice of appeal.
  • The burden is on the appellant to show sufficient cause for delay in filing an appeal.

Court orders

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  1. 1.The application for striking out of the notice of appeal is allowed with costs to the applicant
On appeal from
Court of Appeal
Jurisdiction invoked
Section 23(2) of the Supreme Court Act, 2011 and rules 31 & 37 of the Supreme Court Rules, 2012

Key timeline

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2015-03-31
Respondents filed a notice of appeal in the Supreme Court.
2015-04-30
30-day deadline to file petition of appeal expired; respondents did not file.
2017
Applicant filed to strike out the notice of appeal for non-compliance.
2017
Supreme Court allowed the application, striking out the notice with costs.

Practical implications

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For lawyers

Use Rule 33(5) and (6) proactively

When you lack certified proceedings, immediately apply to omit documents under Rule 33(5) or file the appeal and add missing documents within 15 days under Rule 33(6). Waiting for proceedings is not a valid excuse. Advise clients to file on time and use these rules to avoid strike-out applications.

For businesses

Don't rely on court delays as excuse

If you're appealing a court decision, you cannot blame missing records for missing deadlines. The rules give you ways to proceed without complete documents. Ensure your legal team files the appeal within 30 days, even if records are incomplete, or risk losing your right to appeal entirely.

For individuals

Act fast even if records are missing

If you want to challenge a court ruling, you must file your appeal within 30 days. Not having certified copies of the judgment is not a reason to wait. Your lawyer can ask the court to skip missing documents or add them later. Delaying could get your appeal thrown out.

Frequently asked questions

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Can I appeal a Kenyan court decision if I don't have the certified judgment yet?+

Yes, you can still file your appeal on time. The Supreme Court Rules allow you to apply to omit missing documents or add them within 15 days after filing. Waiting for certified copies is not a valid excuse for delay.

What happens if I miss the 30-day appeal deadline in Kenya's Supreme Court?+

You risk having your notice of appeal struck out. The court may not accept excuses like missing records. You should file on time and use the rules to fix missing documents later, or seek leave to appeal out of time before the deadline expires.

Is a pending application for leave to appeal out of time a valid reason to delay filing in Kenya?+

No. The Supreme Court held that a pending application for leave to appeal out of time does not stop the court from striking out your notice of appeal. You must still file the petition within 30 days or use the rules to manage missing documents.

What are Rule 33(5) and 33(6) of Kenya's Supreme Court Rules?+

Rule 33(5) lets you apply to omit a document from the record of appeal. Rule 33(6) allows you to file additional documents within 15 days of filing without court leave. These rules help you appeal on time even if you lack complete records.

Cite this brief

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Cite this brief

Caselaw, "Irungu v Mbaria & another", Case Analysis (2017). Civil Application 8 of 2015. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2017/24/eng@2017-03-23

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