Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtDismissedApplication 8 of 2020

University of Eldoret & another v Sitienei & 3 others

Supreme Court of Kenya
4 September 2020
4,983 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

#

Choose your legal remedy carefully; you cannot switch after one fails.

What this practically means

#

The Supreme Court dismissed the University of Eldoret's attempt to appeal a 2018 Court of Appeal judgment. The university had first sought a review of that judgment, which failed. They then tried to appeal the original judgment out of time. The court said you must pick one legal option and stick with it. Filing a Notice of Appeal late is a serious mistake that cannot be fixed later.

Executive summary

#
This ruling by the Supreme Court of Kenya (Maraga CJ, Mwilu DCJ, Ibrahim, Wanjala, Lenaola SCJJ) dismissed two applications by the University of Eldoret and its legal officer, Stephen Anditi, seeking extension of time to appeal and a stay of execution. The applications arose from a long-running employment dispute between the university and two former employees (Hosea Sitienei and another). The Court of Appeal had allowed the employees' appeal on 18th October 2018, setting aside the ELRC's dismissal of their petitions as res judicata. The university first sought review of that judgment, which was dismissed, then appealed the review ruling to the Supreme Court, which struck it out on 30th April 2020. The university then filed the present applications seeking to appeal the original 2018 Court of Appeal judgment out of time. The Supreme Court held that the applicants had already chosen to pursue review of the decision, and having done so, they could not later revert to the appeal option. The court emphasized the principle of finality of litigation, stating that a litigant who has multiple options must choose one and cannot later pursue another if the first fails. The court also found that the filing of a Notice of Appeal is a jurisdictional prerequisite, and the applicants had not explained why they failed to file one within 14 days. Consequently, the court dismissed both applications for extension of time and stay, struck out the petition of appeal, and ordered each party to bear their own costs.

Questions the Court framed

#

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

  1. 1.Whether to extend time within which to file the appeal
  2. 2.Whether to grant the orders of stay

Key legal issues

#
01

Whether the court should extend time for filing a Notice of Appeal and Petition of Appeal out of time where the applicant had previously pursued a review of the same decision.

Holding

The court declined to extend time, holding that once a litigant chooses one of multiple available options (here, review), they cannot later revert to the other option (appeal) after the first fails.

Reasoning

The applicants, after the Court of Appeal judgment, chose to pursue a review of that decision. That review was dismissed, and their subsequent appeal against the review ruling was struck out by the Supreme Court. The court held that the applicants had made their choice and could not now seek to appeal the original judgment. The delay of 560 days was inordinate and unexplained, and the filing of a Notice of Appeal is a jurisdictional prerequisite that cannot be waived retroactively.

02

Whether the court should grant a stay of execution in the absence of a valid appeal.

Holding

The court refused to grant a stay, holding that without a subsisting appeal, the prayers for stay are superfluous.

Reasoning

The court found that the intended appeal was not properly before it because the Notice of Appeal was filed out of time and without leave. Since there was no valid appeal, the purpose of a stay—to preserve the subject matter of an appeal—could not be served. The garnishee proceedings that had already taken place were a lawful consequence of a decree from a competent court.

Legal principles established

#
  • A litigant with multiple legal options must choose one and cannot later switch to another if the first fails.
  • Filing a Notice of Appeal within 14 days is a mandatory requirement for an appeal to the Supreme Court.
  • The court cannot excuse a failure to file a Notice of Appeal on time without a very good reason.
  • A stay of execution is only possible if there is a valid appeal already in place.
  • Litigation must end; parties cannot keep trying different remedies after losing.
  • An unexplained delay of 560 days is too long to justify extending time to appeal.

Court orders

#
  1. 1.The application dated 6th May 2020 and filed on 7th May 2020 is hereby dismissed.
  2. 2.The application dated 22nd May 2020 and filed on 22nd May 2020 is hereby dismissed;
  3. 3.The petition of appeal dated 6th May 2020 and filed on 7th May 2020 is struck out;
  4. 4.Each party shall bear their own costs.

The bench

#

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

majority

Wrote the judgment

Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
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 Nakuru
Civil Appeal No. 55 of 2017 (as consolidated with Civil Appeal No. 58 of 2017)
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

#

Extension of time to file Notice of Appeal and Petition of Appeal out of time

The applicants had already chosen to pursue review of the Court of Appeal decision, and having done so, they could not revert to the appeal option. The delay was inordinate and unexplained.

Stay of execution of the judgment and decree of the Court of Appeal

In the absence of a subsisting appeal, the prayers for stay are superfluous.

Costs

Each party shall bear their own 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.

Allowing them to take the second option at this stage, as if they never exercised the first option in the first place, would not only contribute to protracting litigation but also defeat the whole essence of finality of the litigation process.
p. 10 Finality of litigation and election of remedies
filing of the Notice of Appeal is a jurisdictional prerequisite. The prevailing circumstances specific to this case make it very difficult for the Court to evaluate any satisfactory reasons that excuse the applicants from this apparent non-compliance.
p. 10 Jurisdictional prerequisite for appeal
In the absence of a subsisting appeal as we have found above, the prayers for stay in both applications are superfluous.
p. 10 Stay of execution requires a valid appeal

Key timeline

#
2018-10-18
Court of Appeal allows employees' appeal, setting aside ELRC decision.
After 2018-10-18
University of Eldoret files a review of the Court of Appeal judgment.
Before 2020-04-30
Review is dismissed; University appeals the review ruling to the Supreme Court.
2020-04-30
Supreme Court strikes out the appeal against the review ruling.
2020-05-06
University files application for extension of time to appeal original judgment and for stay.
2020-05-22
University files another application for stay.
2020
Supreme Court dismisses both applications and strikes out the petition of appeal.

Practical implications

#
For lawyers

Advise clients on remedy selection

When a client loses at the Court of Appeal, explain that they must choose between review and appeal immediately. If they pick review and it fails, they cannot later appeal the original judgment. Also, ensure a Notice of Appeal is filed within 14 days—no exceptions. This case shows the court will not forgive delay or switching remedies.

For businesses

Finality in employment disputes

If you lose an employment case at the Court of Appeal, decide quickly whether to appeal to the Supreme Court. Do not first seek a review and then try to appeal later—the court will block you. Also, act within 14 days to file a Notice of Appeal. Delays of over a year, as here, are fatal. This ruling reinforces that litigation must end.

For individuals

Act fast after a court loss

If you lose a case at the Court of Appeal, you have only 14 days to file a Notice of Appeal to the Supreme Court. Do not waste time trying other options like a review first—you may lose your right to appeal. The court will not let you switch remedies later. Get legal advice immediately to avoid being locked out.

Frequently asked questions

#
Can I appeal a Court of Appeal decision in Kenya after first seeking a review?+

No. The Supreme Court ruled that you must choose one remedy. If you first seek a review and it fails, you cannot later appeal the original judgment. You are stuck with your first choice.

What happens if I file a Notice of Appeal late in Kenya?+

The court may strike out your appeal. Filing a Notice of Appeal within 14 days is a strict requirement. Unless you have a very good reason for the delay, the court will not extend time.

How long do I have to file a Notice of Appeal to the Supreme Court of Kenya?+

You have 14 days from the date of the Court of Appeal judgment. Missing this deadline can end your chance to appeal, as the court treats it as a jurisdictional requirement.

Can I get a stay of execution if my appeal is not properly filed in Kenya?+

No. A stay of execution is only possible if you have a valid appeal pending. If your Notice of Appeal is late or your appeal is struck out, the court will not grant a stay.

Later judgments citing this (4)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "University of Eldoret & another v Sitienei & 3 others", Case Analysis (2020). Application 8 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/76/eng@2020-09-04

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