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Case Brief · caselaw.co.ke
Supreme CourtPartially AllowedApplication 19 of 2016

Mutanga Tea & Coffee Limited v Shikara Limited & another

Supreme Court of Kenya
24 March 2017
Njoki Susanna NdunguS.N. NjokiIsaac LenaolaI. Lenaola
616 words in judgment
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·~2 min to read original · ~4 min brief

The bottom line

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File court documents on time or get permission first, or they will be thrown out.

What this practically means

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The Supreme Court ruled that if you miss a deadline to file a court document, you must first ask for more time before filing. Filing without that permission makes the document invalid and it will be struck out. In this case, a 17-day delay was excusable because the person who needed to sign the affidavit was a pilot out of reach, and electronic filing took extra time. But the main application was still thrown out because it was filed too early without leave.

Executive summary

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This ruling by a two-judge bench of the Supreme Court of Kenya (Justices Njoki and Lenaola) concerns an application for extension of time to file a review of a Court of Appeal decision. The applicant, Moses Mwakisha, sought to extend time by 17 days, arguing the delay was inadvertent because the deponent of his supporting affidavit, a pilot, was out of reach and could not sign in time, and electronic filing consumed additional time. The 1st respondent, Alice Githere, questioned the veracity of these claims, while the 2nd respondent, Francis Kadima, argued no satisfactory basis was laid. The court unanimously allowed the extension of time, finding the 3-week delay not inordinate and the explanation reasonable, with no prejudice to the respondents. However, the court struck out the Originating Motion dated 30th June, 2016, which had been filed prematurely without prior leave, citing the principle from Nicholas Kiptoo Arap Korir Salat v. IEBC that a document filed out of time without leave is a nullity. The applicant was granted 14 days to file a proper review application. No order as to costs was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 17-day delay in filing the application for review of the Court of Appeal decision was excusable
  2. 2.Whether the Originating Motion dated 30th June, 2016 should be deemed as duly filed
  3. 3.Whether the applicant should be granted leave to file a supplementary affidavit

Key legal issues

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01

Whether a 17-day delay in filing an application for review is inordinate and inexcusable

Holding

The 17-day delay was not inordinate; the explanation that the deponent was a pilot out of reach and that electronic filing consumed time was satisfactory and reasonable.

Reasoning

The court considered the applicant's explanation that the deponent, a pilot by profession, was out of reach and could not sign the affidavit within time, and that scanning documents for electronic filing consumed part of the remaining time. The court found this explanation satisfactory and reasonable, noting that 3 weeks delay is not inordinate and there was no apparent prejudice to the respondents.

p. 2
02

Whether a review application filed out of time without prior leave can be deemed as duly filed

Holding

A review application filed out of time without prior leave is a nullity and cannot be deemed as duly filed; it must be struck out.

Reasoning

The court held that the applicant must first be granted leave before filing the review application. Filing a document out of time without leave renders it a nullity and of no legal consequence, as affirmed in Nicholas Kiptoo Arap Korir Salat v. IEBC & 7 Others. Therefore, the Originating Motion dated 30th June, 2016 was struck out and expunged from the court's records.

p. 2

Legal principles established

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  • If a law sets a deadline, you must get an extension before filing after that deadline.
  • A document filed late without court permission is a nullity and has no legal effect.
  • A 17-day delay is not automatically excessive; the court looks at the reason given.
  • The court can excuse a delay if the explanation is reasonable and the other side is not harmed.
  • You cannot ask the court to treat a late-filed document as if it were filed on time.

Court orders

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  1. 1.The Notice of Motion Application dated 5th July, 2016 is allowed in terms of prayer for extension of time only
  2. 2.The Originating Motion dated 30th June, 2016 is struck out and expunged from the Court's records
  3. 3.The applicant is granted leave to file and serve the application for Review within fourteen (14) days from the date hereof
  4. 4.There shall be no order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Njoki Susanna Ndungu
S.N. NjokiSCJ
Currently serving
majority

Wrote the judgment

Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal
Jurisdiction invoked
Section 23(2)(b) of the Supreme Court Act, and Rules 21 and 23 of the Supreme Court Rules, 2012 (as amended)

Relief refused

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Prayer to deem the Originating Motion dated 30th June, 2016 as duly filed

The applicant must first be granted leave before filing the Review application; the subsequent order (c) disposes of this issue

p. 2

Prayer for leave to file a supplementary affidavit

Same reason as above

p. 2

Costs

There shall be no order as to costs

Quotable passages

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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 Notice of Motion Application dated 5th July, 2016 is hereby allowed in terms of prayer for extension of time only.
p. 2 Extension of time granted
The Originating Motion dated 30th June, 2016 is hereby struck out and expunged from the Court’s records.
p. 2 Striking out of prematurely filed review application
The applicant is granted leave to file and serve the application for Review within fourteen (14) days from the date hereof.
p. 2 Leave to file review application
There shall be no order as to costs.
p. 2 Costs order
where the law provides for the time within which something ought to be done, if that time lapses, one need to first seek extension of that time before he can proceed to do that which the law requires….Such a filling renders the ‘document’ so filed a nullity and of no legal consequence.
p. 2 Consequence of filing out of time without leave

Key timeline

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2016-06-30
Moses Mwakisha filed an Originating Motion for review of a Court of Appeal decision without first getting permission for the late filing.
2016-07-05
Moses Mwakisha filed a Notice of Motion asking for extension of time and to have the June 30 motion treated as properly filed.
Ruling date
The Supreme Court allowed the extension of time but struck out the June 30 motion as a nullity, giving 14 days to file a proper review application.

Practical implications

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For lawyers

File extension first, not later

Never file a substantive motion after a deadline without first obtaining leave. Even if you simultaneously apply for extension, the premature filing is void. Always file the extension application alone, wait for the order, then file the main document. This avoids wasting time and costs on a nullity.

For businesses

Court deadlines are strict

If your business is involved in litigation, ensure your legal team files all documents on time. If a deadline is missed, do not file anything until the court grants an extension. Filing late without permission means the document is worthless and you may have to start over, costing time and money.

For individuals

Missing a deadline? Ask first

If you miss a court deadline, do not file your papers anyway. You must first apply to the court for more time and explain why you were late. If the court agrees, you can then file. Filing without permission means your document will be thrown out, even if your reason for being late is good.

Frequently asked questions

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What happens if I file a court document late in Kenya without permission?+

The document is considered a nullity and will be struck out by the court. You must first apply for extension of time and get the court's approval before filing any document after the deadline.

Can a 17-day delay in filing a court document be excused in Kenya?+

Yes, if you give a reasonable explanation. In this case, the court accepted that the deponent was a pilot out of reach and electronic filing took extra time. The delay was not considered excessive, and there was no harm to the other side.

What is the Nicholas Kiptoo Arap Korir Salat case about in Kenya?+

It is a Supreme Court precedent that a document filed out of time without leave is a nullity and of no legal consequence. This case reaffirmed that principle, striking out a review application filed late without prior permission.

How do I apply for extension of time in the Supreme Court of Kenya?+

You file a Notice of Motion explaining the delay and why it should be excused. The court will consider the length of delay, the reason, and whether the other side will be prejudiced. If granted, you then have a specific period to file your main document.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mutanga Tea & Coffee Limited v Shikara Limited & another", Case Analysis (2017). Application 19 of 2016. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2017/17/eng@2017-03-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.