Naomi Wangechi Gitonga & 3 others v Independent Electoral & Boundaries Commission & 17 others
The bottom line
#Supreme Court dismisses delayed appeal; ignorance of the right court is no excuse.
What this practically means
#Four people nominated to the Nyeri County Assembly were removed after a Court of Appeal ruling. They waited 96 days to file a notice of appeal, then another 235 days to ask for a review. The Supreme Court said these delays were too long and unexplained. Claiming they did not know which court to go to was not a valid reason. The application was dismissed, and each side paid its own costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants have satisfied the requirements for an extension of time to file a notice of appeal and a petition of appeal.
Key legal issues
#Whether the applicants demonstrated sufficient cause for the delay in filing the notice of appeal.
The applicants failed to provide a sufficient explanation for the delay of 96 days in filing the notice of appeal, as their claim of not knowing the appropriate forum was not a valid excuse.
The Court of Appeal judgment was delivered on 8th November 2013, giving the applicants 14 days to file a notice of appeal. They filed an application for extension of time on 13th February 2014, 96 days later. The applicants argued they did not know the proper forum, but the Court held that this could not excuse such inordinate delay, as it would set a negative precedent. The Court emphasized that the Nick Salat decision does not support such a proposition.
Whether the delay in filing the application for review was excusable.
The delay of approximately 235 days in filing the application for review was inordinate and unexplained, warranting dismissal.
The ruling sought to be reviewed was delivered on 18th March 2014, but the application for review was filed on 20th November 2014, a gap of about 235 days. The applicants provided no explanation for this delay. The Court noted that even if the two-judge bench had erred by not addressing the extension of time issue, this did not excuse the applicants' own inordinate delay in seeking review.
Whether the applicants' filing of an election petition in the Chief Magistrate's Court was a proper course of action.
The proper course was to appeal the Court of Appeal decision to the Supreme Court, not to file a fresh election petition in the Magistrate's Court, as the Magistrate's Court could not overturn orders of a superior court.
The IEBC acted in compliance with the Court of Appeal's orders when it deleted the applicants' names. The applicants could not expect the Chief Magistrate's Court to overturn those orders. The only logical course was to appeal the Court of Appeal decision to the Supreme Court within the established timelines, especially given the electoral nature of the dispute requiring timely resolution.
Legal principles established
#- A notice of appeal must be filed within 14 days of a judgment; it is a mandatory first step.
- The court will only extend time if the applicant gives a compelling reason for the delay.
- Ignorance of the correct court is not a valid excuse for an inordinate delay.
- A party cannot use a lower court to overturn orders of a higher court.
- Electoral disputes must be resolved quickly; delays undermine the electoral process.
Court orders
#- 1.The Application dated 14th November, 2014 is hereby dismissed.
- 2.Each Party shall bear own costs.
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
The dissenting judge found that the delay was excusable because the applicants were not parties to the Court of Appeal proceedings and awaited gazettement, and that the Nick Salat principles on extension of time had not been properly considered by the two-judge bench.
I am of the view that the time-gap between the date of delivery of Judgment of the Court of Appeal (8th November, 2013), and the date of its implementation by the IEBC, which was the date of the gazettement of the nomination list (29th November, 2013) is sufficient reason for the delay.p. 9
- On appeal from
- Supreme Court of Kenya (two-judge bench)
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Extension of time to file a notice of appeal and a petition of appeal
The applicants were guilty of inordinate delay and failed to provide sufficient explanation for the delay.
Costs
Each Party shall bear own costs.
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.
A Notice of Appeal is a primary document to be filed outright whether or not the subject matter under appeal is that which requires leave or not. It is a jurisdictional pre-requisite.
the Court will only exercise this discretion in favour of an applicant, where the latter presents a compelling case justifying the inordinate delay.
The Application dated 14th November, 2014 is hereby dismissed.
Each Party shall bear own costs.
Key timeline
#Practical implications
#Strict deadlines for appeals
Ensure clients file a notice of appeal within 14 days of any judgment, even if unsure about the next step. Delays beyond that require a compelling explanation—ignorance of procedure will not suffice. Advise clients that filing a fresh case in a lower court cannot undo a higher court's order.
Act fast on legal disputes
If your business is involved in an election or nomination dispute, act immediately after a court ruling. Waiting even a few weeks can forfeit your right to appeal. Do not assume you can fix the issue by starting a new case in a different court—that strategy failed here.
Don't delay court appeals
If you lose a court case and want to challenge it, file a notice of appeal within 14 days. Not knowing which court to go to is not a valid excuse. Delays of months will likely get your case thrown out, as happened here. Seek a lawyer immediately after a ruling.
Frequently asked questions
#What happens if I miss the 14-day deadline to appeal in Kenya?+
You can apply to the court for an extension of time, but you must give a very good reason for the delay. Simply saying you didn't know which court to go to is not enough. The court will consider how long you waited and whether the delay was excusable.
Can I file a new case in a lower court to overturn a higher court's decision in Kenya?+
No. A lower court cannot overturn orders made by a higher court. The only proper way to challenge a Court of Appeal decision is to appeal to the Supreme Court within the required timelines. Filing a fresh election petition in a magistrate's court will not work.
What is a notice of appeal in Kenya and why is it important?+
A notice of appeal is a formal document you file to tell the court and the other side that you intend to appeal a decision. It must be filed within 14 days of the judgment. It is a mandatory first step—without it, the appeal court has no jurisdiction to hear your case.
How long is too long to delay an appeal in Kenya?+
In this case, a 96-day delay to file a notice of appeal and a 235-day delay to file a review application were both considered inordinate and unexplained. Courts expect appeals in electoral matters to be filed quickly. Any delay beyond a few weeks needs a strong justification.
Later judgments citing this (9)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Olal v Jay Jay Holdings Limited (Environment and Land Miscellaneous Application E051 of 2025) [2025] KEELC 5407 (KLR)[2025] KEELC 5407 (KLR)21 Jul 2025
- Ochuodho v Achacha (Environment and Land Appeal E001 of 2021) [2024] KEELC 82 (KLR)[2024] KEELC 82 (KLR)23 Jan 2024applied
- George Kang’ethe Waruhiu v Esther Nyamweru Munene & another[2021] KESC 42 (KLR)6 Aug 2021
- Robins Nyangau Mosongo & another v Ngoitoi Leiyan & another [2020] KEELC 357 (KLR)[2020] KEELC 357 (KLR)8 Dec 2020
- Ziporah Moraa v David Okioma & another [2020] KEELC 2275 (KLR)[2020] KEELC 2275 (KLR)20 May 2020
- Amina Omar Munye & another v Ali Eymoy Abdi [2020] KEELC 3542 (KLR)[2020] KEELC 3542 (KLR)19 Feb 2020
- Kenya Revenue Authority v Krish Commodities Limited[2020] KESC 60 (KLR)23 Jan 2020
- John Mbewa Olande v Kibiri Construction and Trading Company Limited [2019] KEELC 219 (KLR)[2019] KEELC 219 (KLR)12 Nov 2019applied
- Leah Wambui Kuria & 2 others v Jame Muchumu & another; Charles Thuo Muchunu & 4 others (Interested Parties) [2018] KECA 44 (KLR)[2018] KECA 44 (KLR)20 Dec 2018applied
Cite this brief
#Cite this brief
Caselaw, "Naomi Wangechi Gitonga & 3 others v Independent Electoral & Boundaries Commission & 17 others", Case Analysis (2018). Civil Application 41 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/39/eng@2018-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.