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Supreme CourtDismissedApplication E021 of 2025· [2025] KESC 65 (KLR)

Atieno v Lwango

Supreme Court of Kenya
14 November 2025
1,497 words in judgment
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The bottom line

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Supreme Court dismisses late appeal application due to unexplained delay.

What this practically means

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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

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The Supreme Court dismissed an application by Margaret Atieno Derry alias Margaret Atieno Kasyoki seeking extension of time to file a notice of appeal and a stay of execution against the Court of Appeal's judgment in Civil Appeal No. E221 of 2022, delivered on 21st February 2025. The applicant argued that the judgment was not immediately available, being uploaded on 4th March 2025, and that she had initially sought extension at the Court of Appeal but withdrew after being advised that only the Supreme Court could grant such relief. The respondent opposed the application, noting that the applicant had not explained the delay after the judgment was uploaded or the 69-day delay between withdrawing the Court of Appeal application and filing the instant one. The court applied the principles from Salat v IEBC, emphasizing that extension of time is an equitable remedy requiring a full explanation of the entire period of delay. The court found that the applicant failed to explain the delay for the remaining 7 days after the judgment was uploaded and the 69-day delay from 29th April 2025 to 7th July 2025. Consequently, the application was dismissed with costs to the respondent. The court also reaffirmed that only the Supreme Court can extend time for filing a notice of appeal to it, not the Court of Appeal.

Key legal issues

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01

Whether the applicant provided a satisfactory explanation for the delay in filing the notice of appeal.

Holding

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.

Reasoning

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.

02

Whether the Court of Appeal had jurisdiction to extend time for filing a notice of appeal to the Supreme Court.

Holding

Only the Supreme Court can extend time for filing a notice of appeal to it, not the Court of Appeal.

Reasoning

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

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  • 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

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  1. 1.The Notice of Motion dated 7th July 2025 and filed on 30th July 2025 is hereby dismissed.
  2. 2.The Applicant shall bear the costs of the application.

Authorities

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Legislation

  • Supreme Court Rules, 2020Rule 36(1)
  • Supreme Court Rules, 2020Rule 15(2)
  • Court of Appeal Rules, 2022Rule 54

Cases cited (6)

  • Otieno v Ngani
    Civil Application 67 of 2028 [2025] KECA 473 (KLR)
  • Kenya Revenue Authority & 2 Others v Mount Kenya Bottlers & 4 Others
    [2022] KESC 3 (KLR)
  • Patel v Lagat
    Civil Application E048 of 2021 [2022] KECA 509 (KLR)
  • Salat v The Independent Electoral and Boundaries Commission & 7 Others
    [2014] KESC 12 (KLR)
  • County Executive of Kisumu v County Government of Kisumu & 8 others
    [2017] KESC 16 (KLR)
  • Rai & 3 Others v Rai & 5 Others
    [2013] KESC 21 (KLR)
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

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2025-02-21
Court of Appeal delivers judgment
2025-03-04
Judgment uploaded
2025-04-29
Applicant withdraws application at Court of Appeal
2025-07-07
Applicant files notice of motion at Supreme Court (dated)
2025-07-30
Applicant files application at Supreme Court
2025
Supreme Court dismisses application

Practical implications

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For lawyers

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.

For businesses

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.

For individuals

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

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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

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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.