Attorney General & another v Law Society of Kenya & another; East Africa Law Society & another (Interested Parties) (Civil Application E352 of 2025) [2025] KECA 1991 (KLR)
The bottom line
#Kenya's Court of Appeal gave the Attorney General 30 more days to appeal a ruling over an East African Court of Justice judge nomination, finding the short delay was justified.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants should be granted extension of time to file a Notice of Appeal out of time under Rule 4 of the Court of Appeal Rules
- 2.Whether the delay of about 11 days (and the later filing of the motion) was inordinate and sufficiently explained
- 3.Whether the respondents would suffer prejudice if the extension were granted
Key legal issues
#Discretion to extend time under Rule 4
The court has wide and unfettered discretion to extend time, to be exercised judiciously on the established guidelines: length of delay, reason for delay, arguability and prejudice.
The court applied the well-settled guidelines from Mwangi v Kenya Airways and Leo Sila Mutiso v Rose Hellen Wangari Mwangi. It found a delay of about 11 days not inordinate; the explanation - that instructions to appeal were only received on 25th February 2025 owing to the African Heads of State meeting in Addis Ababa touching on Kenya's AU Commission candidature - was uncontroverted and plausible. No prejudice was demonstrated, whereas refusal would shut the applicants out of the seat of justice.
Reason for the delay
The applicants' explanation for the delay - receipt of instructions on 25th February 2025 following the Africa Heads of State meeting - was reasonable and uncontroverted.
The applicants deponed that instructions could only be obtained after the African Union Heads of State meeting in Addis Ababa, at which Kenya's candidature for the Chairmanship of the African Union Commission required the personal attention of the President and Cabinet Secretary. No party controverted this account, so the court accepted it as a plausible explanation sufficient to satisfy the second guideline.
Prejudice to the respondents
No prejudice was demonstrated; the absence of Kenya's nominee had not stopped the East African Court of Justice from operating.
The court noted that no nomination and appointment to the position of Judge of the East African Court of Justice had been done, and the Court remained operational and quorate without Kenya's nominee. Conversely, refusal of the application would completely shut the applicants out of the seat of justice, tipping the balance in favour of extension.
Legal principles established
#- In deciding an application to extend time under Rule 4, the court considers four factors: the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
Court orders
#- 1.The applicants' motion dated 27th February 2025 is allowed as prayed (extension of time to file and admit the Notice of Appeal out of time, deemed duly lodged and filed on time)
- 2.The applicants shall file the intended appeal within 30 days from the date of the ruling, failing which the orders shall stand vacated
- 3.The costs of the motion shall abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court (implied; judgment quashing the Cabinet Secretary's letter, delivered 31st January 2025)
- Jurisdiction invoked
- Articles 27(1), 40, 50(1) and 159(2)(a),(b),(d),(e) of the Constitution; Sections 3(2), 3A and 3B of the Appellate Jurisdiction Act; Rules 4 and 77(2) of the Court of Appeal Rules (single judge jurisdiction)
Relief refused
#Determination of arguability of the intended appeal
A Single Judge cannot make a determination on the arguability of the intended appeal
Costs
The costs of this motion shall abide the outcome of the intended appeal.
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.
Accordingly, the applicant’s motion dated 27th February 2025, is merited and the same is hereby allowed as prayed. The applicants shall proceed to file the intended appeal within a period of 30 days from the date of this ruling, failure to which these orders shall stand vacated.
first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.
The costs of this motion shall abide the outcome of the intended appeal.
On the other hand, if the instant motion is not allowed, the applicants will have been completely shut out from the seat of justice.
Issues in the judgment
#The 2nd respondent's supporting affidavit is said to have been sworn on 21st July 2024, which predates the judgment being appealed (31st January 2025); the date appears to be a typographical error.
The applicants assert a delay of about 10 days from the delivery of judgment, whereas the court itself computes the delay as about 11 days (Notice of Appeal filed 25th February 2025 against a 14th February 2025 deadline).
The 1st respondent and 1st interested party contend that although the motion is dated 27th February 2025 it was actually filed on 11th June 2025; the ruling does not resolve this factual dispute.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General & another v Law Society of Kenya & another; East Africa Law Society & another (Interested Parties) (Civil Application E352 of 2025) [2025] KECA 1991 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1991/eng@2025-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.