University of Eldoret & another v Sitienei & 3 others
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether to extend time within which to file the appeal
- 2.Whether to grant the orders of stay
Key legal issues
#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.
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.
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.
Whether the court should grant a stay of execution in the absence of a valid appeal.
The court refused to grant a stay, holding that without a subsisting appeal, the prayers for stay are superfluous.
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.The application dated 6th May 2020 and filed on 7th May 2020 is hereby dismissed.
- 2.The application dated 22nd May 2020 and filed on 22nd May 2020 is hereby dismissed;
- 3.The petition of appeal dated 6th May 2020 and filed on 7th May 2020 is struck out;
- 4.Each party shall bear their own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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.
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.
In the absence of a subsisting appeal as we have found above, the prayers for stay in both applications are superfluous.
Key timeline
#Practical implications
#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.
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.
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.
- Cape Holdings Limited v Synergy Industrial Credit Limited[2026] KESC 26 (KLR)24 Mar 2026followed
- Hayombe v Kenya Water Institute (Employment and Labour Relations Cause E151 of 2022) [2025] KEELRC 2423 (KLR)[2025] KEELRC 2423 (KLR)4 Sept 2025
- Langat v Langat (Civil Application E062 of 2024) [2025] KECA 1239 (KLR)[2025] KECA 1239 (KLR)11 Jul 2025applied
- Cherop v Bowen (Civil Application E056 of 2024) [2025] KECA 1240 (KLR)[2025] KECA 1240 (KLR)11 Jul 2025followed
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.