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Supreme CourtDismissedCivil Application E025 of 2023

Kabuito Contractors Ltd v Attorney General

Supreme Court of Kenya
6 October 2023
1,566 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

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Supreme Court upholds dismissal of appeal for missing deadlines, even with a pending certification application.

What this practically means

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The Supreme Court dismissed a contractor's attempt to revive a case it had let go stale. The contractor argued its appeal was still alive because it had applied for certification to appeal on a matter of general public importance. But the Court found no proof the certification application was ever properly lodged. Missing deadlines has consequences, and a pending certification application does not automatically keep an appeal alive.

Executive summary

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This ruling concerns an application by Kabuito Contractors Ltd to review and set aside an order of a single judge (Lenaola, SCJ) dated May 26, 2023, which deemed the applicant's notice of appeal withdrawn for failure to file an appeal within the prescribed time. The applicant had sought to appeal a Court of Appeal decision in Civil Appeal No 638 of 2019, Attorney General v Kabuito Contractors Ltd, delivered on March 3, 2023. The applicant argued that the single judge was unaware of a pending certification application at the Court of Appeal, and that the order deprived it of the right to a fair hearing under Article 50 of the Constitution. The respondent opposed the application, arguing that the applicant failed to establish new and important matters of evidence. The Supreme Court, sitting as a five-judge bench, dismissed the application. The court applied the principles from Parliamentary Service Commission v Martin Nyaga Wambora & others, requiring the applicant to demonstrate that the single judge misdirected himself or was clearly wrong causing apparent injustice. The court found no evidence that the notice of appeal was lodged before the Registrar of the Court of Appeal or that the certification application was eventually lodged. The court also noted that the applicant made no attempt to justify the continued existence of the notice of appeal beyond the period permitted by rules 36 and 38 of the Supreme Court Rules, 2020. The court affirmed the single judge's order and made no order as to 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 applicant has satisfactorily demonstrated that the single judge misdirected himself in the exercise of discretion under rule 46(1) of the Supreme Court Rules, 2020, and as a result arrived at a wrong decision, or that it is manifest from the decision that the judge was wrong and there has been an apparent injustice.

Key legal issues

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01

Whether the single judge misdirected himself in deeming the notice of appeal withdrawn under rule 46(1) of the Supreme Court Rules, 2020.

Holding

The single judge did not misdirect himself; the applicant failed to provide evidence that the notice of appeal was lodged before the Registrar of the Court of Appeal or that the certification application was eventually lodged, and made no attempt to justify the continued existence of the notice of appeal beyond the permitted period.

Reasoning

The court applied the principles from Parliamentary Service Commission v Martin Nyaga Wambora & others, requiring the applicant to show the judge misdirected himself or was clearly wrong causing apparent injustice. The court found no evidence of the notice being lodged or the certification application being pursued, and the belated explanation did not suffice. The court noted that if the certification application succeeds, the applicant will have time to move the court under the relevant rule.

Legal principles established

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  • To review a single judge's decision, you must show the judge was clearly wrong and caused an apparent injustice.
  • A notice of appeal is not automatically kept alive by a pending certification application.
  • You must provide evidence that a certification application was actually lodged, not just filed.
  • Failure to justify why a notice of appeal should exist beyond the permitted period leads to its withdrawal.
  • The right to a fair hearing does not excuse non-compliance with procedural rules.

Court orders

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  1. 1.The notice of motion dated June 23, 2023 be and is hereby dismissed.
  2. 2.There shall be no orders as to costs.

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
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Supreme Court of Kenya (Single Judge, Lenaola SCJ)
Jurisdiction invoked
Section 23(C) of the Supreme Court Act

Relief refused

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Review and setting aside of the order of May 26, 2023 deeming the notice of appeal withdrawn

The applicant failed to demonstrate that the single judge misdirected himself; there was no evidence the notice of appeal was lodged before the Registrar of the Court of Appeal or that the certification application was eventually lodged; the applicant made no attempt to justify the continued existence of the notice of appeal beyond the permitted period.

Costs

There shall be no orders as to 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.

The notice of motion dated June 23, 2023 be and is hereby dismissed.
p. 5 Final orders
There shall be no orders as to costs.
p. 6 Costs order
The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise [of] discretion and: a. as a result a wrong decision was arrived at; or b. it is manifest from the decision as a whole that the judge has been clearly wrong and as a result, there has been an apparent injustice.
p. 4 Principles for review of a single judge's decision
In lodging an appeal on a matter of general public importance, it shall not be mandatory to obtain such certification before filing the notice of appeal.
p. 2 Certification for general public importance

Key timeline

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2023-03-03
Court of Appeal delivers judgment against Kabuito Contractors Ltd.
2023-05-26
Single Supreme Court judge deems Kabuito's notice of appeal withdrawn for failure to file appeal in time.
2023-06-23
Kabuito files application to review the single judge's order.
2024-01-01
Supreme Court bench dismisses the review application.

Practical implications

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For lawyers

Prove certification lodgment, not just filing

When relying on a pending certification application to keep a notice of appeal alive, you must provide evidence that the application was actually lodged before the Registrar of the Court of Appeal. Filing alone is insufficient. Prepare a formal lodgment receipt or affidavit of service to avoid having the notice deemed withdrawn.

For businesses

Deadlines are strict, even with certification

If you lose a case and want to appeal to the Supreme Court, do not assume a pending certification application buys you unlimited time. The Court expects you to either file the appeal within the prescribed period or actively justify why the notice of appeal should remain. Missing deadlines can end your appeal permanently.

For individuals

Fair hearing does not excuse missed deadlines

You cannot rely on the constitutional right to a fair hearing to excuse failure to follow court rules on time limits. The Court held that procedural compliance is essential. If you miss a deadline, you must provide a strong explanation and evidence of steps taken, not just a belated excuse.

Frequently asked questions

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What happens if I miss the deadline to file an appeal in Kenya's Supreme Court?+

Your notice of appeal may be deemed withdrawn automatically. You can apply for review, but you must show the judge was clearly wrong and caused an apparent injustice. A pending certification application does not automatically save your appeal.

Do I need certification before filing a notice of appeal in Kenya's Supreme Court?+

No. The Supreme Court confirmed that certification is not mandatory before filing a notice of appeal. However, you must still comply with all other procedural rules, including time limits for filing the actual appeal.

Can I challenge a single Supreme Court judge's decision in Kenya?+

Yes, you can apply for review by a full bench. But you must prove the judge misdirected themselves in exercising discretion, leading to a wrong decision, or that the judge was clearly wrong and caused an apparent injustice.

What is a certification application for general public importance in Kenya?+

It is a request to the Court of Appeal or Supreme Court to certify that your case raises a matter of general public importance, which is required for certain appeals to the Supreme Court. You must properly lodge it, not just file it, to keep your appeal alive.

Later judgments citing this (1)

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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, "Kabuito Contractors Ltd v Attorney General", Case Analysis (2023). Civil Application E025 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/89/eng@2023-10-06

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