Kenya Airports Authority v Otieno, Ragot & Company Advocates
The bottom line
#Supreme Court allows late submissions, prioritizing justice over strict deadlines.
What this practically means
#The Supreme Court of Kenya ruled that late-filed court submissions can still be accepted if the other side gets a chance to respond. The court said striking out documents is a harsh step, and it preferred to let the case move forward fairly. The appellant had to pay costs for the delay, but the case was not thrown out.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant's submissions, list and digest of authorities filed out of time should be struck out and expunged from the record
- 2.Whether the court should admit the late-filed submissions in the interest of justice
Key legal issues
#Whether the appellant's late-filed submissions should be struck out for non-compliance with court directions
The court declined to strike out the submissions, instead admitting them and granting the respondent leave to file supplementary submissions.
The court acknowledged the appellant's delay of over 25 days in filing submissions, which was prejudicial to the respondent who filed without the benefit of the appellant's submissions. However, the court exercised its discretion under section 21 of the Supreme Court Act and rule 65 of the Supreme Court Rules, 2020, finding that the prejudice could be mitigated by allowing the respondent to file supplementary submissions. The court emphasized that striking out is a draconian measure and that the overriding objective is to do justice without undue regard to procedural technicalities.
Whether the appellant's failure to seek extension of time before filing submissions is fatal
The court held that while the appellant did not move the court appropriately by way of an application for extension of time, this was not fatal to the admission of the submissions.
The court noted that the appellant had not sought extension of time, but considered that the court has general powers under section 21 of the Supreme Court Act and rule 65 of the Supreme Court Rules to make appropriate orders. The court balanced the need for compliance with the need to ensure access to justice and expeditious disposal of the appeal.
Legal principles established
#- Compliance with court orders is fundamental to the rule of law and court dignity.
- Late filing of submissions is not automatically fatal; courts have discretion to admit them.
- Prejudice from late filing can be cured by allowing the opposing party to file supplementary submissions.
- Striking out documents is a draconian measure to be avoided if justice can be done otherwise.
- The overriding objective is to do justice without undue regard to procedural technicalities.
- Costs may be awarded against the late-filing party to compensate the other side.
Court orders
#- 1.The respondent's notice of motion dated September 29, 2023 be and is hereby disallowed
- 2.The appellant's submissions, list and digest of authorities all dated September 22, 2023 and filed on September 25, 2023 be and are hereby admitted as part of the record
- 3.The respondent be and is hereby granted fourteen (14) days from the date of this ruling to draw, file and serve supplementary submissions
- 4.The appellant shall bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Article 163(5) of the Constitution
Relief refused
#Striking out and expunging the appellant's submissions, list and digest of authorities
The court found that the respondent could be facilitated to mitigate prejudice by filing supplementary submissions, and that the appellant could still argue orally at hearing
Costs
The appellant shall bear the costs of the application
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.
compliance with court orders goes to the root of the rule of law as well as the dignity of the court
the respondent can always be granted leave to file supplementary submissions in reply to the submissions by the appellant which were filed out of time all in the interest of justice and to an expeditious disposal of this litigation
Key timeline
#Practical implications
#File on time or seek extension
Always comply with court deadlines. If you must file late, apply for extension of time before filing. The court may still admit late documents, but you risk costs and prejudice arguments. Use section 21 of the Supreme Court Act and rule 65 of the Supreme Court Rules to seek relief.
Court deadlines are serious
If you are in a legal dispute, ensure your lawyers file documents on time. Late filing can lead to extra costs and delays. However, this ruling shows courts may still allow late filings if the other side can respond. Do not assume deadlines are flexible; always aim to comply.
Justice can overcome mistakes
If you miss a court deadline in Kenya, all is not lost. The Supreme Court may still accept your documents if you have a good reason and the other side can reply. But you may have to pay the other side's costs. Always ask your lawyer to seek permission before filing late.
Frequently asked questions
#Can I file court documents late in Kenya?+
Yes, but you need a good reason and should ask the court for permission first. The Supreme Court of Kenya has discretion to accept late submissions if the other side can still respond and justice is served.
What happens if I miss a court deadline in Kenya?+
The other party may apply to strike out your documents. However, the court can still admit them if you explain the delay and the other side gets a chance to reply. You may be ordered to pay costs.
Does the Supreme Court of Kenya allow late submissions?+
Yes, as seen in Republic v National Land Commission & 2 others [2023] KESC 20. The court admitted late-filed submissions because the other side could file supplementary responses, and striking out was too harsh.
How to get extension of time to file submissions in Kenya?+
You must apply to the court before the deadline or as soon as possible after. Use the relevant procedural rules, such as section 21 of the Supreme Court Act. Explain the delay and show that the other side will not be unfairly prejudiced.
Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Asige Keverenge & Anyanzwa Advocates v Mbarak & 3 others (Miscellaneous Application E050 of 2025) [2026] KEELC 4925 (KLR)[2026] KEELC 4925 (KLR)30 Jul 2026followed
- Muinde v Mwania & 2 others (Environment and Land Case Civil Suit E052 of 2024) [2026] KEELC 3494 (KLR)[2026] KEELC 3494 (KLR)9 Jun 2026applied
- Ikua v Waniania & another (Environment and Land Appeal E033 of 2025) [2026] KEELC 1998 (KLR)[2026] KEELC 1998 (KLR)14 Apr 2026applied
- Kenya Wildlife Service v Sea Star Malindi Limited[2024] KESC 80 (KLR)20 Dec 2024
Cite this brief
#Cite this brief
Caselaw, "Kenya Airports Authority v Otieno, Ragot & Company Advocates", Case Analysis (2023). Petition (Application) E011 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/104/eng@2023-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.