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Supreme CourtPartially AllowedApplication E030, E034 & E038 of 2023 (Consolidated)

Nairobi Bottlers Limited v Ndung’u & another

Supreme Court of Kenya
10 November 2023
4,024 words in judgment
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AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Supreme Court struck out Nairobi Bottlers' appeal for filing 4 days late without permission.

What this practically means

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Nairobi Bottlers Limited missed the Supreme Court deadline by four days when appealing a ruling that required nutritional info on glass bottles. The Court said the filing date is when the notice is first lodged at the Court of Appeal, not when it is endorsed. Filing an appeal late without first getting permission makes it void. The company also failed to explain the entire delay. The appeal was struck out, and the stay request fell with it.

Executive summary

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This ruling by the Supreme Court of Kenya (Koome, CJ; Mwilu, DCJ; Ibrahim, SCJ; Wanjala, SCJ; Lenaola, SCJ) disposes of three consolidated motions arising from an appeal by Nairobi Bottlers Limited against a Court of Appeal judgment that had upheld a High Court order requiring the company to provide nutritional information, storage directions, and customer care contacts on glass bottles of its soft drinks. The 1st respondent, Mark Ndumia Ndungu, moved to strike out the appeal for being filed out of time. The applicant sought both a stay of execution and, in the alternative, extension of time to file the appeal. The court first determined that the notice of appeal was filed on July 14, 2023 (the date it was lodged in the Court of Appeal), not on the later date of endorsement by the registrar. Consequently, the appeal filed on August 18/21, 2023 was 4 days out of time. The court found that while the applicant had explained the delay up to August 17, 2023 (due to the Court of Appeal's delay in issuing certified copies), it had not explained the delay from August 17 to October 2, 2023 when it filed the extension motion. More fundamentally, the court held that filing an appeal out of time without prior leave renders it a nullity, and the court cannot later deem it properly filed. The 1st respondent's motion to strike out succeeded, and the appeal was struck out. The motions for stay and extension of time were dismissed. The 1st respondent was awarded costs of all three motions and the appeal.

Questions the Court framed

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

  1. 1.Whether the appeal was filed within the time prescribed by rule 38(1) of the Supreme Court Rules, 2020.
  2. 2.Whether the applicant had provided a reasonable explanation for the delay in filing the appeal, warranting extension of time.
  3. 3.Whether the motion for stay of execution could stand after the appeal was struck out.

Key legal issues

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01

When is a notice of appeal deemed to be 'filed' for purposes of computing time under rule 38(1) of the Supreme Court Rules, 2020?

Holding

The notice of appeal is filed on the date it is first presented and stamped by the registry of the court from which the appeal originates (here, the Court of Appeal), not on the date of endorsement by the registrar or transmission to the Supreme Court.

Reasoning

The court examined rule 36(2) and (3) of the Supreme Court Rules, which require the notice to be filed with the Registrar of the court or tribunal from which the appeal originates, and then transmitted to the Supreme Court. The court distinguished 'filing' from 'transmission', holding that the date of filing is the date the notice is first lodged in the originating court. The registrar's endorsement date (July 21, 2023) was not the filing date because the notice was actually presented on July 14, 2023. The court relied on Erdemann Property Limited v Safaricom Staff Pension Scheme Registered Trustees & 3 others.

02

Can a party file an appeal out of time without prior leave and then seek extension of time to have it deemed properly filed?

Holding

No. Filing an appeal out of time without leave renders the document a nullity, and the court cannot later deem it properly filed by extending time. Such a request is presumptive and inappropriate.

Reasoning

The court applied the principle from Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others, holding that an appeal filed out of time without leave is a nullity. The court rejected the applicant's request to deem the appeal properly filed, stating that to do so would be sanctioning an illegality. The court also noted that the applicant had not explained the entire period of delay, as required by Marvin Opiyo Ambala & another v Oduor Hawi Ambala & another.

03

What is the consequence of filing an interlocutory application (such as a stay of execution) when the underlying appeal is incompetent?

Holding

An interlocutory application can only be predicated on a valid appeal or reference. If the appeal is struck out, the interlocutory application falls with it.

Reasoning

The court cited rule 31(2) of the Supreme Court Rules and Wilfrida Arnodah Itolondo v Attorney General & 9 others, holding that since the appeal was struck out, the motion for stay of execution was predicated on nothing and was dismissed.

Legal principles established

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  • A notice of appeal is filed when first presented and stamped by the originating court, not when endorsed or transmitted.
  • Filing an appeal out of time without prior leave renders the document a nullity; later extension cannot cure it.
  • In an extension application, the whole period of delay must be explained; failure to explain any part is fatal.
  • An interlocutory application (e.g., stay) cannot stand if the underlying appeal is struck out.
  • The court cannot sanction an illegality by deeming an untimely appeal properly filed.

Court orders

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  1. 1.The applicant's notice of motion dated August 16, 2023 and filed on August 21, 2023 (stay of execution) is hereby dismissed.
  2. 2.The applicant's notice of motion dated September 29, 2023 and filed on October 2, 2023 (extension of time) is hereby dismissed.
  3. 3.The 1st respondent's notice of motion dated September 18, 2023 and filed on September 19, 2023 (striking out) is hereby allowed.
  4. 4.The applicant's appeal, SC Petition No E024 of 2023 dated August 16, 2023 and filed on August 21, 2023 is hereby struck out.
  5. 5.The 1st respondent shall have costs of the three motions and the appeal.

The bench

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

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No 99 of 2018
Jurisdiction invoked
Article 163(4)(a) of the Constitution (appeal as of right from the Court of Appeal)
Consolidated with
SC Applic No E030 of 2023, SC Applic No E034 of 2023, SC Applic No E038 of 2023

Relief refused

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Stay of execution of the Court of Appeal judgment pending appeal

The appeal was struck out, so the motion for stay was predicated on nothing.

Extension of time to file the appeal out of time

The applicant did not explain the delay between August 17, 2023 and October 2, 2023, and the motion sought to deem an appeal filed without leave as properly filed, which the court held was sanctioning an illegality.

Costs

The 1st respondent shall have costs of the three motions and the appeal.

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.

For all intents and purposes, the notice of appeal was filed in the Court of Appeal on July 14, 2023.
p. 2 Filing of notice of appeal
No appeal can be filed out of time without leave of the court. Such a filling renders the 'document' so filed a nullity and of no legal consequence.
p. 10 Nullity of appeal filed out of time without leave
In an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the court.
p. 9 Extension of time – requirement to explain entire delay
Having struck out the appeal, the Motion seeking stay of execution is predicated on nothing and is hereby dismissed.
p. 10 Interlocutory application falls with struck-out appeal
The 1st respondent's motion succeeds and the appeal is hereby struck out.
p. 10 Final order striking out appeal
The 1st respondent shall have costs of the three motions and the appeal.
p. 10 Costs order

Key timeline

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2023-07-14
Notice of appeal filed in the Court of Appeal (first lodged and stamped).
2023-07-21
Notice of appeal endorsed by the Court of Appeal registrar.
2023-08-18
Appeal filed on the Supreme Court online platform.
2023-08-21
Printed copies of appeal availed to the Supreme Court; applicant's stay motion filed.
2023-09-19
1st respondent's motion to strike out the appeal filed.
2023-10-02
Applicant's extension of time motion filed.
2023
Supreme Court ruling dismissing all motions and striking out the appeal.

Practical implications

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For lawyers

Strict filing deadlines enforced

The Supreme Court confirmed that the notice of appeal is filed when first lodged in the originating court, not when the registrar endorses it. File within 14 days from the judgment. If you miss the deadline, you must apply for extension before filing any appeal document. Filing first and then seeking extension later renders the appeal a nullity.

For businesses

Procedural errors can sink your case

Nairobi Bottlers lost on a technicality, not the merits. Businesses appealing court decisions must adhere strictly to timelines. If a deadline is missed, seek permission from the court before filing any document. Also, if you file an interlocutory application (like a stay), it will be automatically dismissed if the main appeal is struck out.

For individuals

Court deadlines are non-negotiable

If you are considering an appeal, you must file within the set time. Missing the deadline by even a few days without prior permission can result in your case being thrown out entirely. You must also explain every day of delay if you request an extension. Ignoring these rules can cost you your appeal.

Frequently asked questions

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What is the time limit for filing an appeal to the Supreme Court of Kenya?+

Under Rule 38(1) of the Supreme Court Rules 2020, you must file a notice of appeal within 14 days of the judgment or order you are appealing. The notice is filed in the Court of Appeal first, and the date of filing is when it is first lodged and stamped.

Can I file an appeal late in Kenya's Supreme Court and then ask for an extension?+

No. You must first obtain leave (permission) from the court before filing any appeal document out of time. Filing without leave makes the appeal a nullity, and the court cannot later deem it properly filed. Always apply for extension first.

What happens to a stay application if the main appeal is struck out in Kenya?+

The stay application falls with the appeal. If the appeal is struck out as incompetent, any interlocutory applications (like a stay of execution) are dismissed because they depend on a valid appeal.

What must I prove to get an extension of time to appeal in Kenya?+

You must explain the whole period of delay – every day from the deadline until the date you file the extension motion. The court requires a satisfactory reason for each part of the delay. Failure to explain any portion is enough for the court to refuse the extension.

Later judgments citing this (3)

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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, "Nairobi Bottlers Limited v Ndung’u & another", Case Analysis (2023). Application E030, E034 & E038 of 2023 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/96/eng@2023-11-10

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