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Supreme CourtAllowedPetition (Application) 18 of 2018

Anuar Loitiptip v Independent Electoral and Boundaries Commission & 2 others

Supreme Court of Kenya
5 October 2018
David Kenani MaragaD.K. MaragaMohammed Khadhar IbrahimM.K. IbrahimJackton Boma OjwangJ.B. OjwangSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki Ndungu
1,492 words in judgment
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·~6 min to read original · ~4 min brief

The bottom line

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Supreme Court can extend time for filing in election appeals if no prejudice to other side.

What this practically means

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The Supreme Court allowed an appeal by Hon. Anuar Loitiptip to file a supplementary record late. The appellant had missed a 15-day deadline because the opposing party didn't prepare the court order. The Court ruled that Rule 53 gives it power to extend time, even in election matters, and that doing so doesn't violate the Constitution's requirement for speedy disposal of election cases. The other side was not prejudiced because the omitted documents were already in their possession.

Executive summary

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This ruling by the Supreme Court of Kenya (Maraga CJ, Ibrahim, Ojwang, Wanjala, and Njoki Ndungu SCJJ) concerns an application by Hon. Anuar Loitiptip, the appellant, seeking enlargement of time to file a Supplementary Record of Appeal and to have it deemed properly filed. The application arose from an election petition appeal where the Court of Appeal had nullified the appellant's election as Senator for Lamu County. The appellant had filed his appeal and record of appeal within time but inadvertently omitted the parties' submissions from the Court of Appeal and the certified order, which the 3rd respondent (the successful party below) had not prepared. The appellant filed a Supplementary Record of Appeal on 15th August 2018, outside the 15-day period under Rule 33(6) of the Supreme Court Rules, 2012, and sought leave to have it deemed properly filed. The 1st and 2nd respondents did not oppose the application, but the 3rd respondent opposed it, arguing that the Court lacked jurisdiction to extend time in election matters under Article 87(1) of the Constitution and that the omission was fatal. The Court allowed the application, holding that under Rule 53 of the Supreme Court Rules, it has the power to extend time for any act under the Rules, including Rule 33(6), and that this does not offend Article 87(1). The Court accepted the appellant's unrebutted explanation for the delay and found no prejudice to the 3rd respondent. The Court enlarged time, deemed the Supplementary Record of Appeal properly filed, and ordered costs to abide 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 Court has jurisdiction to extend time for filing a Supplementary Record of Appeal under Rule 33(6) of the Supreme Court Rules, 2012 in an election petition appeal.
  2. 2.Whether the Applicant's explanation for the delay in filing the Supplementary Record of Appeal is sufficient to warrant enlargement of time.
  3. 3.Whether the Supplementary Record of Appeal should be deemed as properly filed and served.

Key legal issues

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01

Whether the Supreme Court has jurisdiction to extend time for filing a Supplementary Record of Appeal under Rule 33(6) in an election petition appeal.

Holding

The Court has jurisdiction under Rule 53 to extend time for any act under the Rules, including Rule 33(6), and this does not violate Article 87(1) of the Constitution.

Reasoning

The Court relied on its precedent in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others to affirm that Rule 53 empowers it to extend time for doing anything under the Rules, including Rule 33(6). The 3rd Respondent's argument that extending time would infringe on the timely disposal of election petitions was rejected because the appeal was already set for hearing and the documents were not new evidence but were already in the 3rd Respondent's possession. The Court found no prejudice to the 3rd Respondent.

p. 4
02

Whether the Applicant's explanation for the delay in filing the Supplementary Record of Appeal is sufficient.

Holding

The Applicant's explanation that the 3rd Respondent had not prepared the draft order and that the omission of the parties' submissions was inadvertent was sufficient, as it was unrebutted by the 3rd Respondent.

Reasoning

The Applicant explained that the 3rd Respondent, as the successful party in the Court of Appeal, had not prepared the draft order within 14 days, forcing the Applicant to prepare it. Additionally, counsel inadvertently omitted the parties' submissions. The 3rd Respondent did not respond to these explanations, leaving them unrebutted. The Court also noted no prejudice would be caused to the 3rd Respondent.

p. 4

Legal principles established

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  • Rule 53 of the Supreme Court Rules gives the Court power to extend time for any act under the Rules.
  • Extension of time in election matters does not automatically violate Article 87(1) of the Constitution.
  • Documents already in the opposing party's possession are not considered new evidence requiring strict timelines.
  • An unrebutted explanation for delay is sufficient to justify extension of time.
  • No prejudice to the opposing party is a key factor in granting extensions.
  • Costs of an application for extension of time abide the outcome of the main appeal.

Court orders

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  1. 1.The Notice of Motion dated 4th September, 2018 is hereby allowed.
  2. 2.Time for filing a Supplementary Record of Appeal under Rule 33(6) of the Rules is enlarged.
  3. 3.The Supplementary Record of Appeal dated 14th August 2018 and filed on 15th August 2018 is deemed properly filed and served on the Respondent's advocates on record.
  4. 4.Costs of this application shall abide the appeal.

The bench

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

David Kenani Maraga
majority

Wrote the judgment

Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
On appeal from
Court of Appeal at Malindi
Malindi Election Petition Appeal No. 2 of 2018
Jurisdiction invoked
Rule 33(6) and Rule 53 of the Supreme Court Rules, 2012; sections 3(a) and 21(3) of the Supreme Court Act

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.

under Rule 53, the Court is empowered to extend the time for doing anything provided for in the Rules, which Rules also include Rule 33(6).
p. 4 Extension of time under Supreme Court Rules
The insinuation that the application of Rule 33(6) in election matters would offend Article 87(1) of the Constitution cannot stand and is not convincing.
p. 4 Application of Rule 33(6) in election petitions

Key timeline

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2018-08-14
Supplementary Record of Appeal dated by the appellant.
2018-08-15
Supplementary Record of Appeal filed outside the 15-day period under Rule 33(6).
2018-09-04
Notice of Motion filed seeking enlargement of time and to deem the record properly filed.
Ruling date
Supreme Court allowed the application, enlarged time, and deemed the record properly filed.

Practical implications

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For lawyers

Use Rule 53 for extensions

When handling election appeals, rely on Rule 53 to seek extensions for filing supplementary records. The court will consider whether the omitted documents are already known to the other side and whether the delay is adequately explained. This ruling confirms that Article 87(1) does not bar such extensions if no prejudice arises.

For businesses

Deadlines can be flexible

While this case involves election petitions, the principle that courts can extend time when no prejudice occurs applies broadly. If your business faces a court deadline, you may still succeed in filing late if you can show a good reason and that the other side is not harmed. Always seek legal advice promptly.

For individuals

Election challenges: no automatic loss

If you are involved in an election petition and miss a filing deadline, you may still get relief. The court will consider why you missed the deadline and whether the other side is prejudiced. For example, if the documents you need to add are already known to the other party, the court may still allow them.

Frequently asked questions

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Can the Supreme Court of Kenya extend time for filing documents in an election petition appeal?+

Yes. Under Rule 53 of the Supreme Court Rules, the Court has power to extend time for any act under the Rules, including filing a supplementary record of appeal. This does not offend Article 87(1) of the Constitution as long as the other side is not prejudiced.

What is Rule 53 of the Supreme Court Rules in Kenya?+

Rule 53 gives the Supreme Court discretion to extend time for doing anything required by the Rules. It applies to all proceedings, including election petitions, and allows the Court to balance strict timelines against fair resolution of disputes.

What happens if you miss a filing deadline in a Kenyan election appeal?+

You can apply to the Supreme Court for extension of time. The Court will consider your reasons for the delay and whether the other side will be prejudiced. If the documents are already in the other party's possession and no harm is shown, the Court may allow the late filing.

Does Article 87(1) of the Kenyan Constitution prevent extending time in election cases?+

No. Article 87(1) requires timely disposal of election disputes, but the Supreme Court has held that extending time for filing a supplementary record does not necessarily violate it, especially if the documents are not new evidence and the other side is not prejudiced.

Later judgments citing this (7)

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

Cite this brief

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Cite this brief

Caselaw, "Anuar Loitiptip v Independent Electoral and Boundaries Commission & 2 others", Case Analysis (2018). Petition (Application) 18 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/63/eng@2018-10-05

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