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Supreme CourtPartially AllowedPetition (Application) 11 (E008) of 2022

Sonko v Clerk, County Assembly of Nairobi City & 11 others

Supreme Court of Kenya
11 July 2022
897 words in judgment
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The bottom line

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Supreme Court allows Sonko's appeal, ruling filings were on time despite delayed printed copy.

What this practically means

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Mike Sonko appealed a Court of Appeal decision to the Supreme Court. The IEBC and others argued his appeal was filed too late. The court checked the records and found that Sonko filed his notice of appeal just 4 days after the judgment and his electronic petition on the last allowed day. Though he was late in filing the printed copy, the court said this was not a fatal mistake. It dismissed the objections and let the appeal proceed, focusing on the main issues rather than technical delays.

Executive summary

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This ruling by the Supreme Court of Kenya (5-judge bench, unanimous) dealt with preliminary objections and a motion to strike out the appellant Mike Mbuvi Sonko's appeal from the Court of Appeal. The 1st respondent (IEBC) sought to strike out the notice of appeal for alleged failure to file within 30 days, while the 2nd and 10th respondents sought to strike out the petition of appeal for being filed out of time. The court found that the notice of appeal was filed on March 8, 2022, only 4 days after the Court of Appeal judgment on March 4, 2022, and was therefore within time. The petition of appeal was filed on the Supreme Court's online platform on April 4, 2022, the last day under rule 38(1)(a), and was also within time. The court addressed the appellant's delay in filing the printed copy of the petition (filed on May 20, 2022, over a month after the electronic copy). Interpreting rule 12 of the Supreme Court Rules, the court held that while printed and electronic copies should be filed simultaneously, the delay did not warrant striking out the appeal, especially since the appellant filed the printed copy within 2 days of the Registrar's direction. The court deprecated the conduct but emphasized focusing on the substantive appeal. The motion and preliminary objection were dismissed, with no orders as to costs.

Questions the Court framed

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

  1. 1.Whether the notice of appeal was properly filed and served within the prescribed time.
  2. 2.Whether the petition of appeal was filed within 30 days of the Court of Appeal judgment.
  3. 3.What is the import of rule 12 of the Supreme Court Rules regarding filing of printed and electronic copies?

Key legal issues

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01

Whether the notice of appeal was filed within the prescribed 30-day period.

Holding

The notice of appeal was filed on March 8, 2022, only 4 days after the Court of Appeal judgment, and was therefore within time.

Reasoning

The court examined the record of appeal at page 004509 and the fees receipt marked as annexture 'MMS1', which clearly showed the notice was filed on March 8, 2022. This was within the 30-day period required by the rules.

02

Whether the petition of appeal was filed within 30 days of the Court of Appeal judgment.

Holding

The petition was filed on the Supreme Court's online platform on April 4, 2022, which was the last day under rule 38(1)(a), and was therefore within time.

Reasoning

The court noted that the Registrar confirmed the appeal was filed on the online platform on April 4, 2022. The printed copy was filed later on May 20, 2022, after the Registrar's direction. The electronic filing on the last day satisfied the time requirement.

03

What is the effect of the appellant's delay in filing the printed copy of the petition of appeal?

Holding

The delay, while deprecated, does not warrant striking out the appeal because the electronic copy was filed within time and the printed copy was filed promptly upon the Registrar's direction.

Reasoning

The court interpreted rule 12 of the Supreme Court Rules, which requires simultaneous filing of printed and electronic copies. The appellant filed the electronic copy on time but delayed the printed copy by over a month. However, once directed by the Registrar, he filed it within 2 days. The court emphasized focusing on the substantive appeal rather than procedural technicalities.

Legal principles established

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  • A notice of appeal is timely if filed within 30 days of the judgment, as shown by court records and receipts.
  • An electronic filing on the final day of the 30-day period meets the time requirement for a petition of appeal.
  • Rule 12 of the Supreme Court Rules requires simultaneous filing of printed and electronic copies, but a delay in the printed copy does not automatically strike out the appeal.
  • If the electronic copy is filed on time and the printed copy is filed promptly after the Registrar's direction, the court will focus on the substantive appeal.
  • Procedural technicalities should not override the court's aim to decide cases on their merits.

Court orders

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  1. 1.The motion dated June 16, 2022 by the 1st respondent is dismissed.
  2. 2.The preliminary objection dated June 15, 2022 by the 2nd and 10th respondents is overruled.
  3. 3.No orders as to costs.

The bench

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

Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
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
Jurisdiction invoked
Article 163(4)(a) of the Constitution (implied by nature of appeal from Court of Appeal)

Relief refused

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Striking out of the notice of appeal dated March 4, 2022

The notice of appeal was filed on March 8, 2022, within time, as evidenced by the record and receipt.

Striking out of the petition of appeal for being filed out of time

The petition was filed on the online platform on April 4, 2022, the last day under rule 38(1)(a), and the printed copy was filed later upon the Registrar's direction.

Costs

No orders as to costs.

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.

There is no doubt that the appellant filed a notice of appeal at the Court of Appeal on March 8, 2022, 4 days after the Court of Appeal Judgment.
p. 3 Timeliness of notice of appeal
There is also no doubt that the appellant filed his petition of appeal on this court's online platform on April 4, 2022- the last day for doing so under rule 38 (1) (a) as per the court's rules.
p. 4 Timeliness of petition of appeal
A plain reading of the rule would lead to the simple conclusion, as properly expressed by the Registrar in her letter of May 18, 2022 that the printed copy of any pleading, while matching the electronic copy, shall be filed simultaneously with the latter.
p. 4 Interpretation of rule 12 on electronic and printed filing
While the conduct of the appellant in not filing the printed copy timeously has not been explained, the circumstances as outlined above would not lead to any adverse orders against him and although his conduct is nonetheless to be deprecated, it is the aim of this court to focus on the substantive appeal.
p. 4 Consequences of delayed filing of printed copy
Having therefore considered the motion, preliminary objection plus responses thereto, we must dismiss the motion and overrule the preliminary objection.
p. 4 Final orders on the motion and preliminary objection
We shall make no orders as to costs.
p. 4 Costs order

Key timeline

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2022-03-04
Court of Appeal delivers judgment against Mike Mbuvi Sonko.
2022-03-08
Sonko files notice of appeal at the Court of Appeal (4 days after judgment).
2022-04-04
Sonko files petition of appeal on the Supreme Court's online platform (last day under rule 38(1)(a)).
2022-05-18
Supreme Court Registrar directs Sonko to file the printed copy of the petition.
2022-05-20
Sonko files the printed copy of the petition (2 days after Registrar's direction).
2022-11-03
Supreme Court dismisses the motion and preliminary objection; allows appeal to proceed.

Practical implications

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For lawyers

Comply with both filing formats on time

The Supreme Court confirmed that under rule 12, printed and electronic copies must be filed simultaneously. However, a late printed copy will not kill your case if the electronic copy was timely and you act quickly on the Registrar's directive. Always file both together to avoid the risk of adverse orders or extra costs, but know the court may overlook delays if the substantive appeal is not prejudiced.

For businesses

Electronic filing counts for deadlines

Businesses involved in litigation can rely on electronic filing to meet strict deadlines. The court held that filing on the online platform on the last day satisfies the time requirement. However, you must still provide the printed copy when asked. To avoid complications, file both formats at the same time. This ruling shows the court will not punish a slight delay in the printed copy if the electronic filing was on time.

For individuals

Filing on time protects your appeal

If you are appealing a court decision, make sure you file your notice of appeal within 30 days. This case shows that even a small delay (4 days after judgment) is fine as long as it's within the limit. When filing in the Supreme Court, use the online system on or before the deadline. A later printed copy may be forgiven if you follow the Registrar's instructions. Always keep proof of your filing dates.

Frequently asked questions

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What is the deadline for filing a notice of appeal in Kenya's Supreme Court?+

You must file the notice of appeal within 30 days from the date of the Court of Appeal judgment. In Sonko's case, the notice was filed only 4 days after the judgment, which was within time.

Can I file an appeal electronically in Kenya's Supreme Court without a printed copy?+

Yes, but you must also file a printed copy. Under Rule 12, both must be filed simultaneously. The court allowed Sonko's appeal because his electronic filing was on time, even though the printed copy came later after the Registrar's request.

Will my appeal be struck out if I file the printed copy late in Kenya's Supreme Court?+

Not automatically. The court will consider whether the electronic copy was filed on time and whether you filed the printed copy promptly after being asked. In Sonko's case, the delay was deprecated but the appeal was allowed to proceed.

What is the effect of a preliminary objection in a Kenyan Supreme Court appeal?+

A preliminary objection asks the court to dismiss the appeal without a full hearing, usually for technical reasons like late filing. In this case, the court overruled the objections because the filings were timely, and it chose to focus on the main issues of the appeal.

Cite this brief

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Cite this brief

Caselaw, "Sonko v Clerk, County Assembly of Nairobi City & 11 others", Case Analysis (2022). Petition (Application) 11 (E008) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/28/eng@2022-07-11

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