Kibutiri (Suing as the Legal Representative of the Estate of Loise Wanja Kibutiri) v Njoro, Kibutiri & Kibutiri (Sued as the Legal Representatives of the Estate of James Njoro Kibutiri) & another
The bottom line
#Supreme Court won't review a certification application struck out for being filed late.
What this practically means
#The Supreme Court dismissed a request to review a Court of Appeal decision that struck out an application for certification. The Court of Appeal had rejected the application because it was filed 41 days late without an extension of time. The Supreme Court said it cannot interfere with that procedural ruling since the Court of Appeal did not decide on the merits of certification. The case was dismissed with no order for costs because the respondents did not oppose it.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal erred in striking out the application for certification as incompetent for being filed out of time.
- 2.Whether the intended appeal raises matters of general public importance warranting certification.
Key legal issues
#Whether the Supreme Court can review a Court of Appeal decision that struck out an application for certification as incompetent for being filed out of time.
The Supreme Court cannot review such a decision because the Court of Appeal did not determine the merits of certification; it struck out the application on procedural grounds.
The Court of Appeal found that the application for certification was filed 41 days after delivery of the impugned judgment, without an extension of time. It struck out the application as incompetent. The Supreme Court held that since the appellate court did not decline certification on its merits, there was no basis to interfere with its procedural ruling.
Legal principles established
#- The Supreme Court will not review a Court of Appeal decision that strikes out a certification application on procedural grounds like being filed out of time.
- Where the Court of Appeal does not decide the merits of certification, the Supreme Court has no basis to grant or review certification.
- An application for certification must be filed within the prescribed time or with a prior extension of time.
- Procedural compliance is a prerequisite for substantive consideration of certification by the Court of Appeal.
- Costs may be waived if the respondents do not oppose the application.
Court orders
#- 1.The originating motion dated May 9, 2024 and filed on May 13, 2024 is hereby dismissed.
- 2.We make no order as to costs there having been no opposition by the respondents.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal
- Civil Appeal No 156 of 2019 (as consolidated with Civil Appeal No 192 of 2019)
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution
Relief refused
#Review of the Court of Appeal ruling dated April 26, 2024 denying certification.
The Court of Appeal struck out the application for certification as incompetent for being filed out of time, not on its merits.
Certification of the intended appeal as one involving matters of general public importance.
The Court of Appeal did not determine the merits of certification; it struck out the application for being out of time.
Costs
We make no order as to costs there having been no opposition by the respondents.
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.
From the foregoing, it cannot be said that the appellate court declined to certify the appeal as one involving a matter of general public importance. What the court did was to strike out the application on grounds that the same was incompetent, having been filed out of time.
As such, we have no basis upon which to interfere with Court of Appeal’s invocation of its rules to strike out an incompetent motion.
The originating motion dated May 9, 2024 and filed on May 13, 2024 is hereby dismissed.
We make no order as to costs there having been no opposition by the respondents.
Key timeline
#Practical implications
#Strict adherence to certification timelines
Ensure applications for certification to the Court of Appeal are filed within the prescribed time. If late, obtain an extension of time before filing. The Supreme Court will not salvage a procedurally defective application; it only reviews merits-based denials.
Procedural deadlines are final
When appealing decisions affecting your business, note that missing filing deadlines without an extension can be fatal. Courts will not excuse non-compliance. Plan legal steps carefully and instruct lawyers to file all documents on time.
Don't miss court deadlines
If you need to appeal a court decision, file all documents by the deadline. If you miss it, ask for an extension before filing. Otherwise, your case may be dismissed without considering the merits, as happened here.
Frequently asked questions
#Can the Supreme Court review a Court of Appeal decision that struck out my certification application in Kenya?+
No, if the Court of Appeal struck out your application because it was filed late without an extension, the Supreme Court will not review that procedural decision. It only reviews if the Court of Appeal declined certification on its merits.
What happens if I file an application for certification to the Court of Appeal out of time in Kenya?+
The Court of Appeal will likely strike it out as incompetent. You must first obtain an extension of time from the court before filing the application. Otherwise, your application will not be considered on its merits.
How long do I have to file an application for certification of a matter of general public importance in Kenya?+
The time limit is typically 14 days from the judgment, but always check the Court of Appeal Rules. If you miss the deadline, apply for an extension of time promptly to avoid having your application struck out.
What is the difference between the Court of Appeal declining certification on merits versus striking it out for being filed late in Kenya?+
If the Court of Appeal declines on merits, it considered your arguments but decided the case is not of general public importance. You can seek review in the Supreme Court. If struck out for being late, the Supreme Court will not review because the merits were not decided.
Cite this brief
#Cite this brief
Caselaw, "Kibutiri (Suing as the Legal Representative of the Estate of Loise Wanja Kibutiri) v Njoro, Kibutiri & Kibutiri (Sued as the Legal Representatives of the Estate of James Njoro Kibutiri) & another", Case Analysis (2024). Application E017 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/70/eng@2024-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.