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Supreme CourtAllowedApplication E025 of 2024

Sicpa SA v Public Procurement and Administrative Review Board & 2 others

Supreme Court of Kenya
14 March 2025
2,165 words in judgment
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AI-assisted case brief
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The bottom line

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Court grants 7-day late appeal extension, citing counsel's medical emergency as valid reason.

What this practically means

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The Supreme Court allowed Lilian Atogo to file her appeal 7 days late because her lawyer miscalculated the deadline due to his wife's medical emergency abroad. The court found the delay reasonable and said opponents cannot challenge the appeal's merits at this stage. She has 14 days to file the main appeal.

Executive summary

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This was an application for extension of time to file an appeal from the Court of Appeal's decision delivered on 2nd August 2024. The applicant, Lilian Atogo, sought to appeal as of right under Article 163(4)(a) of the Constitution. The applicant's counsel miscalculated the filing deadline, arriving at 20th September 2024 instead of the correct date of 16th September 2024. The miscalculation was compounded by the counsel's wife's medical emergency requiring urgent travel abroad between 17th and 19th September 2024. The error was discovered on 20th September 2024, and the application was filed on 23rd September 2024, 7 days after the deadline. The respondents opposed the application primarily on jurisdictional grounds, arguing that the intended appeal did not involve constitutional interpretation and that Section 175(4) of the PPAD Act made Court of Appeal decisions final. The Supreme Court granted the application, holding that the applicant had established a plausible reason for the 7-day delay, which was not inordinate. The court further held, following the Nicholas Salat case, that the question of whether the intended appeal properly falls under the court's jurisdiction is a substantive matter to be decided in the main appeal, not at the interlocutory stage of an extension of time application. The court granted leave to file the appeal within 14 days, with costs to abide the outcome of 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 applicant has established a plausible reason for the delay in filing the intended appeal.
  2. 2.Whether the delay of 7 days is inordinate or unreasonable.
  3. 3.Whether the respondents' challenge to the merits of the intended appeal (jurisdiction) can be considered at this stage.

Key legal issues

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01

Whether the applicant has established a plausible reason for the 7-day delay in filing the intended appeal.

Holding

Yes, the applicant has adequately established a plausible reason for the delay, which is not unreasonable or inordinate.

Reasoning

The court found that the delay was attributed to the applicant's counsel miscalculating the filing date due to his wife's medical emergency requiring urgent travel abroad between 17th and 19th September 2024. The miscalculation only came to light on 20th September 2024, and the application was filed on the next working day, 23rd September 2024. The respondents did not contest the reasons for the delay. The court considered the delay of 7 days not inordinate and exercised its discretion to extend time.

02

Whether the respondents' challenge to the merits of the intended appeal (jurisdiction under Article 163(4)(a)) can be considered at the stage of an application for extension of time.

Holding

No, the question of whether the intended appeal properly falls under the court's jurisdiction is a substantive matter to be decided in the main appeal, not at the interlocutory stage of an extension of time application.

Reasoning

The court relied on its holding in the Nicholas Salat case to reiterate that where a party moves the court as of right under Article 163(4)(a), a respondent cannot move to strike out such an appeal during the hearing of an application for extension of time. The respondent should wait until the intended appeal is properly filed. The court noted that the respondents had not contested the reasons for delay but instead assailed the application by challenging the merits of the intended appeal.

Legal principles established

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  • Extension of time is a discretionary, equitable remedy, not an automatic right.
  • Applicant must provide a reasonable explanation for the delay to the court's satisfaction.
  • A 7-day delay is not inordinate or unreasonable in this context.
  • Respondents cannot challenge an appeal's jurisdiction during an extension of time application.
  • Jurisdictional questions are substantive issues for the main appeal, not preliminary motions.
  • Costs of the extension motion will be decided based on the final appeal outcome.

Court orders

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  1. 1.The notice of motion dated September 23, 2024 and filed on September 24, 2024 is hereby allowed.
  2. 2.Leave is hereby granted to the applicant to file and serve the intended petition/appeal within fourteen (14) days of the date of this ruling.
  3. 3.Costs of the motion shall abide the outcome of the intended appeal.

The bench

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

majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
COACA E474 of 2024
Jurisdiction invoked
Article 163(4)(a) of the Constitution

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 dated September 23, 2024 and filed on September 24, 2024 is hereby allowed, and leave is hereby granted to the applicant to file and serve the intended petition/appeal within fourteen (14) days of the date of this ruling.
p. 7 Final orders granting extension of time
In our view, the applicant has adequately established a plausible reason for the delay. Moreover, we do not find the delay unreasonable or inordinate.
p. 6 Finding on delay
Thus, where a party moves this court as of right, a respondent cannot move to strike out such an appeal during the hearing of an application, like this one, for an extension of time.
p. 6 Jurisdiction challenge at interlocutory stage
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court
p. 5 Nature of extension of time

Key timeline

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2024-08-02
Court of Appeal delivers decision against Lilian Atogo.
2024-09-16
Deadline to file Supreme Court appeal expires.
2024-09-17 to 2024-09-19
Counsel's wife has medical emergency abroad; counsel travels.
2024-09-20
Counsel discovers miscalculation of filing deadline.
2024-09-23
Application for extension of time filed.
2024-10-07
Supreme Court grants extension; 14 days to file appeal.

Practical implications

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For lawyers

Delay excuses must be specific

When seeking extension of time, provide concrete, verifiable reasons for the delay—like medical emergencies with dates. Vague claims won't suffice. Also, note that opponents cannot use this stage to challenge jurisdiction; save that fight for the main appeal.

For businesses

Appeal deadlines are strict but flexible

If you miss a court deadline due to genuine emergencies (e.g., counsel's family medical crisis), you can still seek an extension. Act quickly once you discover the error—here, the application was filed the next working day. Courts may grant relief for short delays with good cause.

For individuals

Don't lose hope if you miss a deadline

Missing a court filing deadline by a few days doesn't automatically end your case. If you have a solid reason—like your lawyer's unexpected emergency—you can ask the Supreme Court for more time. File your request as soon as you realize the mistake.

Frequently asked questions

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Can I file a late appeal in Kenya's Supreme Court?+

Yes, but you must apply for extension of time and explain the delay. The court considers each case individually. A short delay (like 7 days) with a valid reason (e.g., medical emergency) is likely to be granted.

What happens if I miss the appeal deadline in Kenya?+

You can file an application for extension of time under Rule 15(2) of the Supreme Court Rules. You must show a reasonable cause for the delay and file promptly. The court has discretion to allow late appeals.

Can the other side stop my appeal during an extension hearing in Kenya?+

No. The Supreme Court ruled that opponents cannot challenge the appeal's merits or jurisdiction during an extension of time application. Those issues are decided later in the main appeal.

Is a 7-day delay considered unreasonable in Kenyan courts?+

No. In this case, the Supreme Court found a 7-day delay not inordinate or unreasonable, especially when caused by a genuine emergency like a lawyer's family medical crisis.

Cite this brief

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Cite this brief

Caselaw, "Sicpa SA v Public Procurement and Administrative Review Board & 2 others", Case Analysis (2025). Application E025 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/4/eng@2025-03-14

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