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Supreme CourtDismissedApplication E003 of 2024

Jomo Kenyatta University of Agriculture & Technology v Kwanza Estates Limited

Supreme Court of Kenya
31 May 2024
1,812 words in judgment
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The bottom line

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Filing the same request in two courts at once is an abuse of process.

What this practically means

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The Supreme Court dismissed KRA's request for more time to challenge a Court of Appeal ruling. KRA had already asked the Court of Appeal to review the same decision, but also filed a similar request at the Supreme Court. The court said this was improper—you cannot pursue the same relief in two different courts at the same time. KRA also gave a weak excuse for its delay, so the application failed.

Executive summary

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The Supreme Court dismissed an application by the Kenya Revenue Authority (KRA) seeking extension of time to apply for review of a Court of Appeal ruling that had granted the respondent, M/S. Mwangi & Company Advocates, leave to appeal to the Supreme Court. The Court of Appeal had certified the respondent's appeal as raising matters of general public importance in a ruling delivered on 15th December 2023. KRA claimed it was not served with a hearing notice for that motion, as the notice was sent to the wrong email address by the court registry. KRA filed an application for review in the Court of Appeal on 21st December 2023. While that application was pending, the respondent filed its appeal before the Supreme Court on 15th January 2024. KRA then filed the instant application before the Supreme Court seeking extension of time and leave to file an Originating Motion for review of the same Court of Appeal ruling, as well as a stay of proceedings in the appeal. The Supreme Court found that KRA's conduct of seeking the same relief—review of the certification ruling—simultaneously before the Court of Appeal and the Supreme Court amounted to an abuse of the judicial process. The court noted that KRA had not provided evidence that its application before the Court of Appeal had been formally withdrawn. On the merits, the court held that KRA had not satisfied the principles for extension of time as laid down in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others. The reason for delay was found to be absurd and unpersuasive, and the respondent would suffer prejudice if time were extended since the appeal had already been lodged and responded to. The application was dismissed in its entirety with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether the applicant has satisfied the principles for the grant of an order for extension of time as enunciated in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others

Key legal issues

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01

Whether the applicant satisfied the principles for extension of time under Rule 15(5) of the Supreme Court Rules, 2020.

Holding

The applicant did not satisfy the principles for extension of time. The reason for delay was absurd and unpersuasive, and the applicant failed to lay a proper basis for the grant.

Reasoning

The court applied the principles from Nicholas Kiptoo Arap Korir Salat. It found that the applicant's explanation for delay—that it was waiting for the Court of Appeal to review its decision—was not credible because the applicant simultaneously filed a similar application for review before the Supreme Court. This amounted to an abuse of process. Additionally, the applicant had not formally withdrawn the application before the Court of Appeal, and the respondent would suffer prejudice if time were extended since the appeal had already been lodged and responded to.

02

Whether the applicant's conduct of filing similar applications for review before the Court of Appeal and the Supreme Court simultaneously amounts to an abuse of the judicial process.

Holding

Yes, it amounts to an abuse of the judicial process.

Reasoning

The court found that the applicant was 'trying to have its cake and eat it too' by seeking the same relief—review of the ruling on certification—before two different courts at the same time. The applicant had not provided evidence that the application before the Court of Appeal had been formally withdrawn. The court held that good order demands that the application pending before the Court of Appeal be dispensed with first.

Legal principles established

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  • A party seeking extension of time must explain any delay convincingly to the court.
  • Filing the same application in two different courts at the same time is an abuse of process.
  • The court will consider whether the other side would be unfairly harmed if time is extended.
  • An application for extension must be made without unnecessary delay.
  • Public interest may be relevant when deciding whether to extend time.

Court orders

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  1. 1.The Applicant’s Notice of Motion dated 1st February 2024, be and 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.

Martha Karambu Koome
M.K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal
Civil Application No. E053 of 2023
Jurisdiction invoked
Articles 25(c), 50(1) and 163(5) of the Constitution; Sections 3(e), 3A, 15A, 23A and 23(2A)(b) of the Supreme Court Act; Rule 15(2) of the Supreme Court Rules 2020

Relief refused

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Extension of time to apply for review of the Court of Appeal ruling

The applicant has not laid a proper basis for the grant; the reason for delay is absurd and unpersuasive; there is likely prejudice to the respondent; and the applicant is abusing the judicial process by seeking similar reliefs simultaneously before two different levels of court.

Leave to file and serve the draft Originating Motion

The application for extension of time was dismissed, so this consequential prayer was not addressed.

Stay of proceedings in SC Petition No. E001 of 2024

The application for extension of time was dismissed, so this consequential prayer was not addressed.

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.

What it has done indeed amounts to an abuse of the judicial process; seeking similar reliefs, namely the review of the ruling on certification, simultaneously before two different levels of court.
p. 3 Abuse of process
the applicant has not laid a proper basis for the grant of the application; the reason for the delay is not only absurd but also unpersuasive, in addition to the likely prejudice that the respondent may be exposed to if time is extended
p. 4 Extension of time
The Applicant’s Notice of Motion dated 1st February 2024, be and is hereby dismissed.
p. 4 Final orders
The Applicant shall bear the costs of this application.
p. 4 Costs order

Key timeline

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2023-12-15
Court of Appeal grants Mwangi & Company Advocates leave to appeal to the Supreme Court.
2023-12-21
KRA files an application for review of that ruling in the Court of Appeal.
2024-01-15
Mwangi & Company Advocates files its appeal in the Supreme Court.
2024-02-01
KRA files a notice of motion in the Supreme Court seeking extension of time and review of the same ruling.
2024-07-26
Supreme Court dismisses KRA's application, finding it an abuse of process.

Practical implications

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For lawyers

Avoid parallel filings in different courts

Do not file the same application for review or extension of time in two courts simultaneously. If you have a pending application in the Court of Appeal, formally withdraw it before filing in the Supreme Court. Otherwise, your conduct will be struck out as an abuse of process, and you risk costs.

For businesses

Act promptly on court deadlines

If your business misses a court deadline, you must provide a clear, credible reason for the delay. Vague excuses—like waiting for another court to decide a similar issue—will not work. Act quickly and avoid filing duplicate requests in different courts, which wastes time and money.

For individuals

Don't file the same case in two courts

If you have a legal matter, never ask two different courts to decide the same issue at the same time. Courts see this as trying to get a second chance unfairly. Always resolve one application before starting another. Otherwise, your case may be dismissed and you may have to pay the other side's legal costs.

Frequently asked questions

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Can I file the same court application in two different courts in Kenya?+

No. The Supreme Court ruled that seeking the same relief—like a review of a ruling—in both the Court of Appeal and the Supreme Court at the same time is an abuse of the judicial process. You must finish one application before starting another.

What happens if I miss a court deadline in Kenya?+

You can ask for more time, but you must give a clear, honest reason for the delay. The court will also check if the other side would be harmed by the delay. Weak excuses, like waiting for another court to decide, will likely lead to your request being denied.

What is an abuse of process in Kenyan courts?+

It means using court procedures in a way that is unfair or improper. For example, filing the same case in two courts at once, or making a request without a valid reason. Courts can dismiss such cases and order you to pay the other side's costs.

Does the Supreme Court in Kenya always grant extensions of time?+

No. Extensions are discretionary and only given if you meet strict conditions: you must explain the delay convincingly, apply without further delay, show no unfair harm to the other side, and sometimes consider public interest. The court rejected KRA's request because its reason was weak.

Later judgments citing this (2)

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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, "Jomo Kenyatta University of Agriculture & Technology v Kwanza Estates Limited", Case Analysis (2024). Application E003 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/20/eng@2024-05-31

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