Senate & 3 others v Speaker of the National Assembly & 10 others
The bottom line
#Supreme Court extends time for Senate cross-appeal, citing public interest and plausible delay.
What this practically means
#The Supreme Court allowed the Senate and its Speaker extra time to file a cross-appeal against a Court of Appeal decision. The court found the delay reasonable, caused by administrative changes after the August 2022 elections. It emphasized that public interest cases should not shut out any party. However, the court rejected the Senate's request to use the National Assembly's appeal records, ordering them to file their own within 30 days. Submissions filed late were struck out but fresh ones allowed within 14 days.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave should be granted to enlarge time for filing a notice of cross-appeal
- 2.Whether the notice of cross-appeal annexed to the application should be deemed as duly filed, served and properly on record
- 3.Whether the 1st and 2nd respondents should be permitted to rely on the record of appeal lodged by the petitioners in support of their cross-appeal
Key legal issues
#Whether the delay in filing the cross-appeal was inordinate and without justifiable reasons.
The delay was not inordinate and the reasons given (changes in the National Assembly administration after the August 9, 2022 General Elections) were plausible.
The court examined rule 47(2)(b) of the Supreme Court Rules, 2020 on the lodgement of a memorandum of appeal and record of appeal, and was satisfied that the delay involved did not qualify to be described as inordinate and the reasons given were plausible. The court also considered the public interest nature of the dispute, which militated against shutting out any party from the seat of justice, and found that no party would be prejudiced if the time was extended.
Whether the 1st and 2nd respondents should be permitted to rely on the record of appeal lodged by the petitioners.
No, they must lodge their own memorandum and record of appeal as required by rule 47(2)(b) of the Supreme Court Rules, 2020.
The court noted that rule 47(2)(b) requires a cross-appellant to lodge eight copies of the memorandum of appeal and record of appeal, and not to rely on other parties' pleadings. The court therefore refused this prayer while granting the application for extension of time.
Whether the submissions filed out of time by the 1st, 2nd and 4th respondents should be struck out.
Yes, the submissions filed out of time and without prior leave are expunged from the record as a nullity and of no legal consequence.
The court reiterated the caution in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others that it is highly irregular to file documents out of time without leave and thereafter seek the court's stamp of approval. The court rejected the submissions filed on January 20, 2023 by the 1st and 2nd respondents and those filed on January 26, 2023 by the 4th respondent, expunging them from the record. However, the court exercised its inherent powers under section 3A of the Supreme Court Act and rule 3(5) of the Supreme Court Rules to excuse the infractions and granted them leave to file fresh submissions.
Legal principles established
#- Extension of time is at the court's discretion, based on reasons for delay and prejudice to other parties.
- Filing documents out of time without prior leave is irregular; such documents are nullities.
- Public interest in a dispute weighs against excluding any party from justice.
- A cross-appellant must file its own memorandum and record of appeal, not rely on other parties' filings.
- Courts can excuse procedural infractions under inherent powers, allowing fresh filings.
- No costs awarded where both sides contributed to procedural issues.
Court orders
#- 1.The application dated January 30, 2023 and filed on January 31, 2023 is hereby allowed.
- 2.The 1st and 2nd respondents will file and serve the notice, memorandum and record of appeal in compliance with rule 47 of the Supreme Court Rules within thirty (30) days from the date hereof.
- 3.The 1st, 2nd and 4th respondents will file and serve afresh their written submissions within fourteen (14) days from the date of this ruling.
- 4.There shall be no orders as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Jurisdiction invoked
- Articles 50 and 159 of the Constitution; Rules 3(2), 3(5), 15(2), 31(6) and 47(2)(b) of the Supreme Court Rules, 2020
Relief refused
#Prayer that the 1st and 2nd respondents be permitted to rely on the record of appeal lodged by the petitioners in support of their cross-appeal
The court held that by rule 47(2)(b) of the Supreme Court Rules, 2020, the 1st and 2nd respondents are required to lodge eight copies of the memorandum of appeal and record of appeal and not to rely on other parties' pleadings.
Costs
There shall be no orders as to 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.
that time is extended at the unfettered discretion of the court based on the unique circumstances of each case; that the burden is upon the applicant to explain to the satisfaction of the court the reasons for delay; and whether there will be any prejudice sufiered by the opposing parties if the extension is granted, among other considerations
it is highly irregular and presumptive in this court to file documents out of time without leave and thereafter seek court’s stamp of approval to deem them to be regularly on record
the public interest nature of this dispute militates against shutting out or throwing out of the seat of justice any party in the resolution of this dispute
The 1st and 2nd respondents will file and serve the notice, memorandum and record of appeal in compliance with rule 47 of the Supreme Court Rules within thirty (30) days from the date hereof.
There shall be no orders as to costs.
Key timeline
#Practical implications
#Strict compliance with filing rules
Always seek leave before filing documents out of time. The court will expunge submissions filed late without prior approval, even if later granted extension. File a formal application for extension before the deadline, not after. Use the Nicholas Kiptoo precedent to argue for discretion but avoid relying on it to cure non-compliance.
Plan for administrative transitions
If your organization faces leadership or administrative changes (e.g., after elections), anticipate delays in legal filings. Document the reasons for any delay clearly. Courts may accept plausible explanations, but you must act promptly once the change is resolved. Keep legal teams informed of internal transitions to avoid missing deadlines.
File on time or seek leave first
If you miss a court deadline, do not file late and then ask for forgiveness. You must first apply for an extension of time before filing any document. The court will reject documents filed without prior permission. Even if you have a good reason, follow the correct procedure to avoid your filings being declared null and void.
Frequently asked questions
#What happens if I file a court document late in Kenya without permission?+
The court will likely reject it and expunge it from the record. You must first apply for an extension of time before filing. The Supreme Court in this case struck out submissions filed late without leave, even though it later granted a fresh filing opportunity.
Can the Senate use the National Assembly's appeal records in Kenya?+
No. The Supreme Court ruled that each cross-appellant must file its own memorandum and record of appeal. Relying on another party's records is not allowed under Rule 47(2)(b) of the Supreme Court Rules, 2020.
What is a cross-appeal in Kenya and when can I file one?+
A cross-appeal is filed by a respondent who also wants to challenge part of a judgment. In the Supreme Court, you must file it within the same time limits as a main appeal. If you miss the deadline, you can apply for an extension, but you must explain the delay and show no prejudice to the other side.
Does public interest affect court decisions on time extensions in Kenya?+
Yes. The Supreme Court considered the public interest nature of the dispute between the National Assembly and Senate. It held that shutting out a party in such cases would not serve justice, so it granted the extension despite the delay.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Matindi v National Assembly Republic of Kenya & 4 others[2025] KESC 66 (KLR)14 Nov 2025followed
Cite this brief
#Cite this brief
Caselaw, "Senate & 3 others v Speaker of the National Assembly & 10 others", Case Analysis (2023). Petition 19 (E027) of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/7/eng@2023-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.