Matindi v National Assembly Republic of Kenya & 4 others
The bottom line
#Court allows late filing but expunges already-filed affidavit for procedural irregularity.
What this practically means
#The Supreme Court partially allowed an application from the 4th respondent to file a replying affidavit late. The court extended the time but removed the affidavit already filed, calling it irregular to file first and then seek approval. The 4th respondent must file a fresh one within seven days. The appellant can respond within seven days. Costs will be decided later. The court emphasized that minor procedural mistakes should not stop substantive justice, especially in a public interest tax case.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 4th respondent's application for extension of time to file its replying affidavit should be granted.
- 2.Whether the replying affidavit filed out of time should be admitted on record.
- 3.Whether the application was properly before the court given procedural irregularities.
Key legal issues
#Whether the 4th respondent's application for extension of time should be granted despite procedural irregularities in filing and service.
The court held that the application was partly allowed; time was extended but the replying affidavit already filed was expunged, and the 4th respondent was granted leave to file a fresh replying affidavit.
The court found that although there were procedural lapses (the application was filed late and served seven days out of time), the appellant did not demonstrate any resulting prejudice. The court prioritized substantive justice, noting the appeal raises issues of significant public interest concerning tax exemptions and constitutional compliance. However, the court also emphasized that it is irregular to file documents out of time and then seek approval, so it expunged the already-filed affidavit while granting leave to file a fresh one within seven days.
Whether the 4th respondent provided a sufficient explanation for the delay in filing its replying affidavit.
The court accepted the explanation that the delay was due to the complexity of the matter and the need for internal consultations, finding it neither inordinate nor suggestive of bad faith.
The court noted that the 4th respondent attributed the delay to late receipt of instructions due to the complexity of the matter and in-house deliberations. The court gave counsel the benefit of the doubt, noting the delay was only seven days and the appellant did not demonstrate any prejudice. The court also considered the public interest nature of the appeal in exercising its discretion.
Legal principles established
#- Minor procedural lapses will not stop the court from deciding appeals fairly and justly if no prejudice is shown.
- An applicant seeking an extension must explain the entire delay clearly and credibly.
- Filing documents out of time and then asking the court to approve them is highly irregular.
- Courts prioritize substantive justice over procedural technicalities, especially in public interest matters.
- The party opposing an extension must show actual prejudice to succeed in blocking it.
Court orders
#- 1.The application dated March 13, 2025 is partly allowed to the extent that the time for filing the 4th respondent/applicant's replying affidavit is hereby extended.
- 2.The replying affidavit sworn by Isaac Kweyu on March 13, 2025 and filed on March 17, 2025 on behalf of the 4th respondent/applicant is hereby expunged from the record.
- 3.The 4th respondent/applicant shall file and serve its replying affidavit within seven days of the date of this ruling.
- 4.The appellant is at liberty to file a rejoinder thereof within seven days of service of the said replying affidavit, if so minded.
- 5.For the avoidance of doubt, all the other prayers are hereby denied.
- 6.The costs of this application shall abide the outcome of the substantive appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Not specified in the judgment
Relief refused
#Admission of the replying affidavit sworn on March 13, 2025 on record
The affidavit was filed out of time and the court expunged it, citing the principle from Salat v IEBC that it is irregular to file documents out of time and seek the court's stamp of approval.
Costs
The costs of this application shall abide the outcome of the substantive 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.
we have equally affirmed that minor procedural lapses, particularly where no prejudice is occasioned or demonstrated, will not derail the court's overarching constitutional mandate: the fair, just and expeditious determination of meritorious appeals.
It is well-established that an applicant seeking leave to regularize a procedural lapse must declare the entire period of delay and offer a cogent and credible explanation for such delay.
it is highly irregular and presumptive for a party to file documents out of time and thereafter seek the Court's stamp of approval on such an obvious illegality.
The application dated March 13, 2025 is partly allowed to the extent that the time for filing the 4th respondent/applicant's replying affidavit is hereby extended.
The replying affidavit sworn by Isaac Kweyu on March 13, 2025 and filed on March 17, 2025 on behalf of the 4th respondent/applicant is hereby expunged from the record.
The costs of this application shall abide the outcome of the substantive appeal.
Key timeline
#Practical implications
#File extension first, not after
Always apply for extension of time before filing the late document. Filing first and then asking for approval is irregular and will result in the document being expunged. This ruling reaffirms the Salat principle. Ensure you declare the full delay and give a credible explanation to avoid dismissal.
Tax exemption cases remain high-stakes
This appeal challenges the constitutionality of tax exemptions under Legal Notice No. 15 of 2021, raising issues of discrimination, public participation, and disclosure. Businesses relying on those exemptions should monitor the outcome closely, as it could affect their tax liabilities and compliance obligations.
Procedural mistakes don't always kill your case
If you genuinely miss a court deadline but can explain the delay and show the other side wasn't harmed, the court may still allow you to file. However, you must follow the correct procedure: ask for permission first, not file the document and hope for forgiveness later.
Frequently asked questions
#Can I file a court document late in Kenya without asking for permission?+
No. Filing a document after the deadline and then asking the court to approve it is considered irregular. You must first apply for an extension of time with a clear explanation of the delay. The court may grant it if no prejudice is shown.
What happens if I file an affidavit out of time in a Kenyan Supreme Court case?+
The court will likely expunge that affidavit from the record. You may be allowed to file a fresh one if you apply for an extension and give a credible reason for the delay. The other party must not have suffered any prejudice.
What is the public interest in this Kenyan tax exemption case?+
The appeal challenges the constitutionality of tax exemptions under Legal Notice No. 15 of 2021. It raises questions about discrimination, public participation, and disclosure requirements under Article 210(2) of the Constitution. The outcome could affect many taxpayers.
How does the Kenyan Supreme Court treat minor procedural mistakes?+
The court prioritizes substantive justice. If the mistake does not prejudice the other party, the court will not dismiss the case solely on procedural grounds. However, it will still correct the irregularity, such as expunging a late-filed document.
Cite this brief
#Cite this brief
Caselaw, "Matindi v National Assembly Republic of Kenya & 4 others", Case Analysis (2025). Petition (Application) E006 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/66/eng@2025-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.