Temoi & another v Governor, Bungoma County & 3 others
The bottom line
#Supreme Court dismisses late appeal by IEBC due to lack of evidence and missing documents.
What this practically means
#The Supreme Court dismissed an application by the Republic and another party to file an appeal late. The applicants blamed COVID-19 and trouble finding a lawyer, but provided no proof. They also failed to attach their intended appeal papers or state the constitutional grounds. The Court upheld strict rules: you must show good reason for delay and follow all procedural steps.
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 principles for extension of time to file an appeal out of time
Key legal issues
#Whether the Applicants provided a reasonable explanation for the delay in filing the appeal.
The Applicants did not provide a reasonable or cogent explanation for the delay; failure to obtain legal representation and the Covid-19 pandemic were not sufficiently evidenced.
The court found that the Applicants' explanation for the delay—inadvertence due to Covid-19 and inability to obtain pro bono counsel—was not supported by evidence. The court noted that while the pandemic initially affected access, there was no evidence that the Applicants were unable to access the court in good time. Additionally, failure to obtain legal representation without evidence is not a sufficient ground for extension.
Whether the Applicants complied with procedural requirements for extension of time applications.
The Applicants failed to annex the intended Petition of Appeal or grounds of appeal, and did not state the constitutional provisions they intended to rely upon, thus failing to meet procedural requirements.
The court held that under Rules 38(2)(a) and 39(2) of the Supreme Court Rules, 2020, and as established in Yusuf Gitau Abdallah, an applicant must annex the intended appeal documents. Further, following Suleiman Mwamlole Warrakah, the applicant must explicitly state the constitutional provisions relied upon. The Applicants' failure to do so was a ground for dismissal.
Legal principles established
#- Extension of time requires a reasonable explanation for the delay, supported by evidence.
- Failure to get a lawyer is not a valid excuse for late filing without proof.
- Applicants must attach the intended appeal or grounds of appeal to the extension application.
- Applicants must explicitly state the constitutional provisions they rely on in the intended appeal.
- COVID-19 pandemic alone does not automatically excuse delay; specific evidence of inability to access court is needed.
Court orders
#- 1.The Notice of Motion application by the Applicants dated 13th July 2020 and filed on 14th July 2020 is hereby dismissed
- 2.Each party shall bear its costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Jurisdiction invoked
- Section 3(d) & (e) of the Supreme Court Act, 2011, Rules 3(5), 15(2) and 38(1) of the Supreme Court Rules, 2020
Relief refused
#Extension of time to file an appeal out of time
The Applicants have no reasonable or cogent explanation and did not adduce sufficient reasons for the delay
Costs
Each party shall bear its 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.
the Applicants have no reasonable or cogent explanation and did not adduce sufficient reasons for the delay in filing the intended appeal as failure to obtain legal representation is not a sufficient ground for this Court to exercise its discretion in an application for leave to file an appeal out of time where no evidence is tendered in that regard
the Applicants have not annexed to their application their intended Petition of Appeal or the grounds of appeal which they wish the Court to consider in their intended Petition of Appeal and to allow the proceedings before this Court to commence in accordance with Rules 38(2)(a) and 39(2) of the Supreme Court Rules, 2020 and as determined in Yusuf Gitau Abdallah v. Building Centre (K) Ltd Petition No. 27 of 2014; [2014] eKLR
The Notice of Motion application by the Applicants dated 13th July 2020 and filed on 14th July 2020 is hereby dismissed
Each party shall bear its costs
Key timeline
#Practical implications
#Strict proof required for delay
When filing for extension of time, you must present concrete evidence explaining the delay—vague references to COVID-19 or inability to find counsel will not suffice. Also, always attach the intended appeal documents and clearly list the constitutional provisions invoked. Failure to do so is fatal.
Deadlines are rigid in court
Businesses involved in litigation must treat court deadlines as absolute. If you miss a filing date, you face a high bar to get extra time. You must produce evidence (e.g., medical records, official letters) showing why you could not file on time. Hiring a lawyer late is not an excuse without proof.
Get legal help early—and prove it
If you are a party in a case and need more time to appeal, you must show the court why you delayed. Just saying you could not afford a lawyer or that COVID-19 affected you is not enough. Gather documents like correspondence with lawyers or evidence of court closures to support your request.
Frequently asked questions
#What are the requirements for extension of time to appeal in Kenya?+
You must give a reasonable explanation for the delay, supported by evidence. You also need to attach your intended appeal documents and state the constitutional provisions you rely on. The Supreme Court applies these rules strictly, as shown in Republic v. IEBC [2020] eKLR.
Can COVID-19 be used as a reason for late filing in Kenyan courts?+
Yes, but you must provide specific evidence that the pandemic prevented you from filing on time. General claims are not enough. In Republic v. IEBC [2020] eKLR, the Supreme Court dismissed the application because the applicants did not prove they could not access the court in good time.
What happens if you do not attach the intended appeal to an extension application in Kenya?+
The court will likely dismiss your application. The Supreme Court Rules require you to annex the intended appeal or grounds of appeal. In Republic v. IEBC, the applicants failed to do so, and the court held that this was a procedural flaw that contributed to dismissal.
Is inability to find a lawyer a valid excuse for late filing in Kenya?+
Not without evidence. The Supreme Court in Republic v. IEBC [2020] eKLR ruled that failure to obtain legal representation is not a sufficient ground for extension of time unless you provide proof of your efforts to find a lawyer.
Cite this brief
#Cite this brief
Caselaw, "Temoi & another v Governor, Bungoma County & 3 others", Case Analysis (2020). Civil Application 17 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/10/eng@2020-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.