Atieno v Lwango
The bottom line
#Supreme Court dismisses late appeal application due to unexplained delay.
What this practically means
#Margaret Atieno Derry wanted to appeal a Court of Appeal decision to the Supreme Court but missed the deadline. She asked the Supreme Court for more time, but the court found she did not explain why she waited 69 days after withdrawing a similar application at the Court of Appeal. The court also said only the Supreme Court can extend time for appeals to it, not the Court of Appeal. Because the delay was unexplained, the application was dismissed and she must pay the other side's costs.
Executive summary
#Key legal issues
#Whether the applicant provided a satisfactory explanation for the delay in filing the notice of appeal.
The applicant failed to explain the delay from 29th April 2025 to 7th July 2025 (69 days) and the remaining 7 days after the judgment was uploaded, thus the application was dismissed.
The court applied the principles from Salat v IEBC, requiring an applicant to explain the entire period of delay. Although the court noted a 7-day delay by the Court of Appeal in uploading the judgment, the applicant did not explain the delay in filing the notice within the remaining 7 days nor the 69-day delay in bringing the application after withdrawing a similar application at the Court of Appeal. The unexplained delay rendered the application without merit.
Whether the Court of Appeal had jurisdiction to extend time for filing a notice of appeal to the Supreme Court.
Only the Supreme Court can extend time for filing a notice of appeal to it, not the Court of Appeal.
The court cited its decision in Kenya Revenue Authority & 2 Others v Mount Kenya Bottlers & 4 Others, emphasizing that extension of time for filing an appeal to the Supreme Court must be sought under the Supreme Court Rules, 2020, and not under the Court of Appeal Rules. The Court of Appeal in Otieno v Ngani reiterated this position, leading the applicant to withdraw her application from the Court of Appeal and file the instant one.
Legal principles established
#- Only the Supreme Court can extend time for filing a notice of appeal to itself.
- An applicant must explain the entire period of delay, not just part of it.
- The Court of Appeal has no jurisdiction to extend time for Supreme Court appeals.
- Unexplained delay renders an application for extension of time without merit.
- The equitable remedy of extension of time requires full disclosure of reasons for delay.
Court orders
#- 1.The Notice of Motion dated 7th July 2025 and filed on 30th July 2025 is hereby dismissed.
- 2.The Applicant shall bear the costs of the application.
- On appeal from
- Court of Appeal
- Civil Appeal No. E221 of 2022
- Jurisdiction invoked
- Rule 15(2) of the Supreme Court Rules 2020
Key timeline
#Practical implications
#Jurisdiction for extension of time clarified
The Supreme Court reaffirmed that only it can extend time for filing a notice of appeal to itself. Lawyers must file such applications in the Supreme Court under the Supreme Court Rules, 2020, not in the Court of Appeal. Additionally, applicants must provide a full explanation for the entire delay period.
Timely appeals crucial to avoid dismissal
Businesses should note that missing an appeal deadline can be fatal. If you need more time, you must apply to the Supreme Court and explain the entire delay. Unexplained gaps, even of a few days, can lead to dismissal and being ordered to pay the other side's costs.
Act quickly when appealing to Supreme Court
If you miss the deadline to appeal to the Supreme Court, you must ask the Supreme Court itself for more time, not the Court of Appeal. You also need to explain why you were late for the entire period, not just part of it. Unexplained delays will lead to dismissal.
Frequently asked questions
#How to apply for extension of time to appeal to the Supreme Court in Kenya?+
You must file an application in the Supreme Court under the Supreme Court Rules, 2020. The application must explain the entire period of delay. The Court of Appeal cannot grant this extension, so you must go directly to the Supreme Court.
What happens if you miss the deadline to appeal in Kenya?+
You can apply for extension of time, but you must provide a satisfactory explanation for the whole delay. If you fail to explain any part of the delay, the court may dismiss your application and you may have to pay costs.
Can the Court of Appeal extend time for a Supreme Court appeal in Kenya?+
No. Only the Supreme Court can extend time for filing a notice of appeal to itself. The Court of Appeal has no jurisdiction to do so, so any application there will be invalid. You must apply directly to the Supreme Court.
What is the Salat v IEBC principle on extension of time in Kenya?+
The principle requires an applicant for extension of time to explain the entire period of delay. The court will not grant the extension if any part of the delay is unexplained, no matter how small.
Cite this brief
#Cite this brief
Caselaw, "Atieno v Lwango", Case Analysis (2025). Application E021 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/65/eng@2025-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.