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Case Brief · caselaw.co.ke
Supreme CourtAllowedApplication 17 of 2017

Paul Mungai Kimani & 20 others v Attorney General & 2 others

Supreme Court of Kenya
20 November 2018
575 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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Court extends appeal time when delay is caused by judiciary, not the applicant.

What this practically means

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The Supreme Court allowed 12 people to file an appeal 8 months late because the delay was not their fault. They had asked for court records promptly but only received them after 10 months due to the court's slow processing. The court said it must balance strict deadlines with doing justice, especially when the judicial system itself causes the holdup. The applicants now have 14 days to file their appeal.

Executive summary

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This was an application by Irungu Mwangi and 11 others for extension of time to file an appeal out of time against the judgment of the Court of Appeal in Nairobi Civil Appeal No. 173 of 2013, delivered on 23rd September 2016. The applicants contended that the delay of about 8 months was caused by the Court of Appeal's failure to supply them with certified copies of typed proceedings and judgment despite applying for them on 28th September 2016, only receiving them on 17th July 2017. The respondents opposed the application, arguing that the applicants had not demonstrated sufficient efforts to obtain the records. The Supreme Court, in a unanimous ruling, allowed the application. The court applied the principles from Hassan Nyanje Charo v Khatib Mwashetani & 3 Others, emphasizing that while timeliness is important, the court must also respond to individual claims with justice. The court found that the delay was not inordinate because it was caused by the slow judicial machinery, not the applicants' indolence, and that no appeal could be filed without the record. The court extended time and granted the applicants 14 days to file their appeal, with costs to abide in the cause.

Questions the Court framed

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

  1. 1.Whether the Applicants have demonstrated sufficient cause for extension of time to file an appeal out of time.

Key legal issues

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Whether the delay of 8 months in filing the appeal was inordinate and inexcusable.

Holding

The delay was not inordinate because it was caused by the Court of Appeal's failure to supply certified proceedings and judgment in time, not by the applicants' indolence.

Reasoning

The applicants applied for certified copies of proceedings and judgment on 28th September 2016, shortly after the Court of Appeal judgment on 23rd September 2016, but only received them on 17th July 2017. The court found that no appeal could properly be filed without the record of the Court of Appeal, and the delay was attributable to the slow wheels of the Judiciary machinery, not the applicants. Therefore, the delay of 8 months was not inordinate in the circumstances.

Legal principles established

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  • Timeliness is important but must be balanced against the constitutional duty to do justice in each case.
  • Delay caused by the judiciary's failure to supply proceedings is not attributable to the applicant.
  • An appeal cannot be properly filed without the certified record of the lower court.
  • An 8-month delay is not inordinate when the applicant acted promptly and the delay was due to court machinery.
  • Extension of time is a discretionary remedy guided by the need to avoid injustice, not rigid rules.

Court orders

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  1. 1.The Notice of Motion application dated 17th August, 2017 is hereby allowed and the time allowed to file an appeal out of time is hereby extended.
  2. 2.The Applicants are hereby granted leave to file an appeal within 14 days from today's date.
  3. 3.Costs shall abide in the cause.

The bench

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

majority
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. 173 of 2013
Jurisdiction invoked
Section 23(2)(b) of the Supreme Court Act, 2011; Rules 21 and 23 of the Supreme Court Rules, 2012

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 17th August, 2017 is hereby allowed and the time allowed to file an appeal out of time is hereby extended.
p. 3 final orders
the concept of 'timelines and timeliness' is generally upheld, as a vital ingredient in the quest for efficient and effective governance under the Constitution. However, even as we take due account of that context, we remain cognizant of the Court's eternal mandate of responding appropriately to individual claims, as dictated by compelling considerations of justice.
p. 2 extension of time
Noting that it is the slow wheels of the Judiciary machinery that has occasioned the Applicants' inability to file their Appeal on time, the delay of 8 months is not, in the circumstances, inordinate, given the explanation proffered for the delay, that no appeal could properly be filed without the record of the Court of Appeal.
p. 3 delay attributable to court

Key timeline

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2016-09-23
Court of Appeal delivers judgment in Nairobi Civil Appeal No. 173 of 2013.
2016-09-28
Applicants apply for certified copies of proceedings and judgment.
2017-07-17
Applicants finally receive the certified proceedings and judgment.
2017-08-17
Applicants file the application for extension of time to appeal.
2018
Supreme Court allows the application, granting 14 days to file appeal.

Practical implications

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For lawyers

Document all steps to show diligence

When seeking extension of time, keep a clear record of every step you take to obtain proceedings. The court here relied on the applicants' prompt application (28 Sept 2016) and the long gap until receipt (17 July 2017). If you face similar delays, file a formal application for extension as soon as you receive the record, and cite this case to argue that court-caused delay is excusable.

For businesses

Plan for judicial delays in appeals

If you are involved in litigation and anticipate an appeal, budget for potential delays in obtaining court records. This case shows that even an 8-month wait for proceedings can be excused, but you must act promptly—apply for records immediately after judgment. Keep your own timeline and copies of all correspondence to prove you did not cause the delay.

For individuals

Don't lose hope if court is slow

If you miss an appeal deadline because the court took too long to give you the necessary documents, you can still ask for more time. The Supreme Court said that when the judicial system itself causes the delay, you should not be penalized. Act quickly: apply for records right after judgment, and if they are late, file an extension application as soon as you receive them.

Frequently asked questions

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Can I file an appeal late in Kenya if the court delayed giving me documents?+

Yes. The Supreme Court in Irungu Mwangi & 11 Others v. [Respondent] [2018] eKLR held that if the delay is caused by the judiciary's failure to supply proceedings, it is not your fault. You must show you applied for the records promptly and only received them late.

What is the time limit to file an appeal in Kenya?+

Appeals to the Supreme Court must generally be filed within 30 days from the date of the judgment or order appealed against. However, the court can extend this time if you show good cause, such as delays caused by the court itself in providing necessary records.

How do I apply for extension of time to appeal in Kenya?+

You file a formal application (Notice of Motion) explaining the delay and why it is excusable. Attach evidence like your request for proceedings and the date you received them. The court will consider whether you acted diligently and whether the delay was caused by factors beyond your control.

What is considered 'inordinate delay' in Kenyan appeals?+

There is no fixed number of days. The court looks at the reason for the delay. In Irungu Mwangi, an 8-month delay was not inordinate because it was caused by the court's slow processing. But if you delay without good reason, even a shorter period may be considered inordinate.

Later judgments citing this (1)

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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, "Paul Mungai Kimani & 20 others v Attorney General & 2 others", Case Analysis (2018). Application 17 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/12/eng@2018-11-20

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