Mulima & 2 others (Suing as Representatives of Ex-East African airways Stafi Welfare Association) v Attorney General & 8 others
The bottom line
#Court delay in providing appeal records justifies late filing, Supreme Court rules.
What this practically means
#The Supreme Court allowed a group to appeal late because the Court of Appeal took too long to give them the case files. The group had filed a notice of appeal right after losing in the Court of Appeal, but the proceedings were only supplied nine months later. The court said this delay was not the applicants' fault, so they can now file their appeal within 14 days.
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 appeal out of time.
Key legal issues
#Whether the applicants should be granted leave to appeal out of time.
The Supreme Court allowed the application, holding that the delay in filing the appeal was caused by the Court of Appeal's failure to supply copies of proceedings and judgment in time, and not by the applicants' fault.
The applicants filed a Notice of Appeal on 6th March 2017, immediately after the Court of Appeal judgment on 24th February 2017, and applied for copies of proceedings. The proceedings were only supplied on 20th December 2017, causing the appeal period to expire. The Court found that the delay was attributable to the Court of Appeal, not the applicants, and therefore exercised its discretion to grant leave.
Legal principles established
#- A party who promptly files a notice of appeal and requests proceedings should not be penalized for the court's delay in supplying them.
- The Supreme Court has discretion to grant leave to appeal out of time when the delay is caused by the lower court, not the applicant.
- Laches (unreasonable delay) is not established if the applicant acted promptly and the delay is attributable to the court system.
- Costs of an extension application may be reserved to abide the outcome of the main appeal, not awarded immediately.
- A fresh record of appeal must be filed within a strict timeline set by the Supreme Court after leave is granted.
Court orders
#- 1.The application for leave to appeal out of time is allowed.
- 2.The applicants shall file a fresh record of appeal within fourteen (14) days of the date hereof.
- 3.The costs of this application shall abide the outcome of the intended appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya
- Appeal No. 179 of 2015
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution of Kenya, 2010
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.
Having perused the application and its annextures and considered the rival submissions of the parties, we find that it is the Court of Appeal which failed to supply the applicants with copies of the proceedings and judgment in time.
In the circumstances, we allow this application. The applicants shall file a fresh record of appeal within fourteen (14) days of the date hereof. The costs of this application shall abide the outcome of the intended appeal.
Key timeline
#Practical implications
#Use court delay as extension ground
When your client misses an appeal deadline because the lower court delayed supplying proceedings, cite this case to argue the delay is not your client's fault. File a notice of appeal and a request for proceedings immediately after judgment. The Supreme Court will likely grant leave if you show prompt action and court-caused delay.
Court delays won't block your appeal
If you lose a case in the Court of Appeal and the court takes months to give you the judgment and records, you can still appeal late. Act quickly by filing a notice of appeal and asking for the records. The Supreme Court will not punish you for the court's slowness. This protects your right to be heard.
Don't lose appeal rights due to court slowness
If you want to appeal a Court of Appeal decision but the court delays giving you the case papers, you can ask the Supreme Court for extra time. File your notice of appeal right away and apply for the records. The Supreme Court will consider the delay as the court's fault, not yours, and may allow your late appeal.
Frequently asked questions
#Can I appeal to the Supreme Court of Kenya after the deadline if the Court of Appeal delayed giving me the case files?+
Yes. The Supreme Court in this case allowed a late appeal because the Court of Appeal took nine months to supply the proceedings. You must show you filed a notice of appeal and requested the records promptly. The delay caused by the court will not be held against you.
What is the time limit to appeal to the Supreme Court of Kenya from the Court of Appeal?+
Generally, you must file a notice of appeal within 14 days of the judgment and then file the record of appeal within 30 days after receiving the proceedings. But if the court delays giving you the proceedings, you can apply for an extension of time, as this case shows.
How do I apply for leave to appeal out of time in the Supreme Court of Kenya?+
File a formal application explaining why you missed the deadline. Attach evidence that you acted promptly (e.g., notice of appeal and request for proceedings). The court will consider whether the delay was excusable. This case confirms that court-caused delay is a valid reason.
What happens if the Court of Appeal in Kenya loses my request for proceedings?+
You should follow up in writing and keep copies of all correspondence. If the delay is unreasonable, you can apply to the Supreme Court for leave to appeal out of time. The court will examine the timeline and may grant you an extension if you were not at fault.
Cite this brief
#Cite this brief
Caselaw, "Mulima & 2 others (Suing as Representatives of Ex-East African airways Stafi Welfare Association) v Attorney General & 8 others", Case Analysis (2019). Civil Application 1 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/74/eng@2019-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.