Kimani & 2 others v Attorney General
The bottom line
#Supreme Court allows late filing of appeal record and consolidates three related human rights petitions.
What this practically means
#The Supreme Court granted three petitioners permission to add a missing court order to their appeal records, even though it was late. The court found their explanation reasonable and the delay short. It also merged their cases with a similar one to avoid conflicting decisions. All petitions involve alleged human rights violations at Freedom Corner and All Saints Cathedral in the early 1990s. The lead case will be the one filed first.
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 leave to file a supplementary record of appeal to include a certified copy of the order of dismissal from the Court of Appeal
- 2.Whether Petition Nos 26, 34 and 35 of 2019 should be consolidated
Key legal issues
#Whether leave should be granted to file a supplementary record of appeal out of time to include a certified copy of the order of dismissal from the Court of Appeal.
Leave was granted because the applicants provided a plausible and reasonable explanation for the omission and delay, the delay was not inordinate (9 days after service of the order), and the certified order was not prejudicial to the respondent.
The court applied the principles from Nicholas Kiptoo Korir Salat v IEBC & 7 others, noting that the applicants explained that the order of dismissal was settled on December 14, 2021 and issued on December 16, 2021, but served on their advocate on January 21, 2022. The motion was filed on February 1, 2022, only 9 days later, which was not inordinate. The court also found no prejudice to the respondent and exercised its discretion under rule 15(2) of the Supreme Court Rules, 2020 in favour of the applicants.
Whether Petition Nos 26, 34 and 35 of 2019 should be consolidated.
The petitions were consolidated because they arise from the same set of circumstances, raise similar issues, and seek similar orders, meeting the threshold for consolidation.
The court noted that all three petitions arise from alleged violations of constitutional rights at 'Freedom Corner' and All Saints Cathedral Church between March 3, 1992 and January 19, 1993, were decided by the same High Court judge (Lenaola, J) and the same Court of Appeal bench (Warsame, Kiage & Murgor, JJA), and raise similar issues. The court applied the principles from Omoke v Kenyatta & 83 others and Law Society of Kenya v Centre for Human Rights & Democracy & 12 others, finding that the threshold for consolidation was met. Petition No 26 of 2019, being the first in time, was designated as the lead file.
Legal principles established
#- A reasonable explanation for omitting a certified order and a short delay can justify granting leave to file a supplementary record.
- Lack of prejudice to the opposing party supports the court's discretion to allow late procedural filings.
- Appeals arising from the same facts, raising similar issues, and seeking similar orders can be consolidated.
- The court may designate the earliest filed petition as the lead file in a consolidation.
- Costs of procedural applications follow the outcome of the main appeal.
- The Supreme Court has discretion under its rules to grant extensions for procedural compliance.
Court orders
#- 1.The applicants are hereby granted leave to file a supplementary record of appeal to include a certified copy of the order of dismissal issued on December 16, 2021 by the Court of Appeal within seven days of this ruling.
- 2.Petition No 34 of 2019, Priscilla Mwara Kimani & 2 others v Attorney General is hereby consolidated with Petition No 26 of 2019, Monica Wangu Wamwere v Attorney General, and Petition No 35 of 2019, Michael Maina Kamami & another v Attorney General. Petition No 26 of 2019 being the first in time shall be the lead file.
- 3.The costs of the application shall abide by the outcome of the consolidated appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal
- Jurisdiction invoked
- Rule 15(2) of the Supreme Court Rules, 2020
- Consolidated with
- Petition No 26 of 2019, Petition No 35 of 2019
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.
the applicants have provided a plausible and reasonable explanation for the omission of the certified order in question and the delay in filing the supplementary record of appeal
Petition Nos 26, 34 and 35 of 2019 before this court arise from the same set of circumstances, raise similar issues and seek similar orders
Petition No 34 of 2019, Priscilla Mwara Kimani & 2 others v Attorney General is hereby consolidated with Petition No 26 of 2019, Monica Wangu Wamwere v Attorney General, and Petition No 35 of 2019, Michael Maina Kamami & another v Attorney General. Petition No 26 of 2019 being the first in time shall be the lead file.
The costs of the application shall abide by the outcome of the consolidated appeal.
Key timeline
#Practical implications
#Late filing strategy: explain delay
When seeking leave to file a supplementary record out of time, provide a clear, plausible explanation for the omission and delay. The court here accepted a 9-day delay after service, emphasizing lack of prejudice to the respondent. Use this precedent to support similar applications, but ensure the delay is not inordinate and the explanation is reasonable.
Consolidation saves time and cost
If your business faces multiple related legal claims, consider seeking consolidation. The court merged three petitions with common facts and issues, designating the earliest as lead. This reduces duplication, conflicting rulings, and litigation costs. Consult your lawyer to assess whether your cases meet the threshold of same circumstances, similar issues, and similar orders.
Your case can join similar ones
If you have a human rights claim similar to others already in court, you may ask the court to consolidate your case. This ruling shows the Supreme Court will merge petitions with the same background and legal issues. It can make your case stronger and faster, as the court handles them together. Talk to your lawyer about filing a consolidation motion.
Frequently asked questions
#What is a supplementary record of appeal in Kenya?+
A supplementary record of appeal is an additional document filed to correct or complete the original appeal record. In this case, the applicants needed to include a certified copy of the Court of Appeal's dismissal order. The Supreme Court allowed it even though it was late.
How do you consolidate cases in the Kenya Supreme Court?+
To consolidate cases, file a motion showing the cases arise from the same facts, raise similar issues, and seek similar orders. The court will merge them into one lead file. Here, three petitions about the same 1992-1993 human rights incidents were consolidated.
What is the effect of consolidation of petitions in Kenya?+
Consolidation means multiple petitions are heard together as one case, with one lead file. This avoids conflicting decisions, saves court time, and reduces costs. All parties share the same record and hearings. The court decides all issues in a single judgment.
Can you file an appeal late in Kenya Supreme Court?+
Yes, but you need the court's permission. You must show a reasonable explanation for the delay and that the other side will not be unfairly prejudiced. In this case, a 9-day delay after service was allowed because the explanation was plausible and no prejudice was shown.
Cite this brief
#Cite this brief
Caselaw, "Kimani & 2 others v Attorney General", Case Analysis (2022). Petition 34 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/12/eng@2022-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.