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Supreme CourtDismissedCivil Application 35 of 2014

Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others

Supreme Court of Kenya
27 May 2015
Mohammed Khadhar IbrahimM.K. IbrahimJackton Boma OjwangJ.B. Ojwang
6,619 words in judgment
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AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Supreme Court dismisses appeal for wrong route; you cannot switch appeal types after deadlines lapse.

What this practically means

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The Supreme Court dismissed an appeal because the applicant tried to change the type of appeal after missing a deadline. In Kenya, appeals to the Supreme Court follow two distinct paths: one is automatic for certain cases, the other requires special permission. You cannot start with one path and switch to the other just because you missed the filing time. The Court also said you cannot ask the Supreme Court for permission to appeal while a similar request is still pending at the Court of Appeal. The case must finish at the lower court first.

Executive summary

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The applicant, Timamy Issa Abdalla, filed an application seeking extension of time to appeal to the Supreme Court against a Court of Appeal decision, or alternatively, leave to appeal directly. The Court of Appeal had delivered its decision on 21st November 2013 but reserved its reasons, which were given on 13th January 2014. The applicant filed a notice of appeal on 2nd December 2013 but did not file the appeal within 30 days, claiming he needed the reasoned judgment. He then applied for certification in the Court of Appeal under Article 163(4)(b), but that application was delayed. He then moved the Supreme Court for extension of time or direct leave. The Supreme Court dismissed the application. It held that a certified order of the Court of Appeal sufficed for a record of appeal, so the applicant could have filed within time. The Court further held that an appeal 'as of right' cannot be converted into one requiring certification merely because time has lapsed. Since the applicant had a pending application for certification in the Court of Appeal, the Supreme Court would not entertain a parallel application. The Court also recognised the High Court's declaration that Section 16(2)(b) of the Supreme Court Act (providing for leave on grounds of 'substantial miscarriage of justice') is unconstitutional, leaving only certification for matters of general public importance as a basis for leave. The application was dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.Having filed a notice of appeal within time, could the applicant have filed an appeal without the 'reasoned text of the decision' of the Court of Appeal?
  2. 2.Can an appeal that lies 'as of right' be converted to one that requires certification, where the prescribed time for lodging it has lapsed?
  3. 3.Where an appeal lies only upon certification that it involves 'matters of general public importance', and where such an application for certification is delayed at the Court of Appeal, does such delay convert the matter to one 'as of right', so that the applicant may now come directly before the Supreme Court?

Key legal issues

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01

Whether a record of appeal can be filed without the reasoned judgment of the Court of Appeal.

Holding

A certified Decree or Order of the Court of Appeal suffices; the full reasoned judgment is not mandatory.

Reasoning

The Court examined Rule 33(4) of the Supreme Court Rules, which lists the required documents for a record of appeal from an appellate court. It does not include the full judgment. The Court cited its earlier decision in Chris Bichage, which held that a certified order or decree is sufficient. The applicant could have filed the appeal with the order of 21st November 2013 and later supplemented the record with the reasons when they were delivered on 13th January 2014, within the 15-day window provided by Rule 33(6).

p. 10
02

Whether an appeal 'as of right' can be converted into an appeal requiring certification after the time for filing has lapsed.

Holding

No. The two avenues of appeal under Article 163(4) are distinct and the choice is determined by the character of the issues, not by procedural shortfalls.

Reasoning

The Court held that the path a litigant takes is determined by the subject-matter of the appeal. An appeal that lies 'as of right' under Article 163(4)(a) cannot be transformed into one requiring certification under Article 163(4)(b) merely because the time for filing the 'as of right' appeal has expired. The decision on how to proceed rests on the nature of the issues, not on procedural delays.

p. 11
03

Whether the Supreme Court can entertain an application for leave to appeal while a similar application is pending before the Court of Appeal.

Holding

No. The Supreme Court will not assume jurisdiction until the Court of Appeal has pronounced itself on the application for certification.

Reasoning

The Court relied on its earlier decision in Hassan Nyanje Charo v. Khatib Mwashetani, where it held that when a party moves the Court of Appeal for certification, the Supreme Court's intervention is not in issue until that Court's task is complete. The Supreme Court's role in such matters is one of review, not original jurisdiction. The pendency of the application in the Court of Appeal precludes a parallel application in the Supreme Court.

p. 12
04

Whether Section 16(2)(b) of the Supreme Court Act, providing for leave on grounds of 'substantial miscarriage of justice', is constitutional.

Holding

The Court recognised the High Court's declaration that Section 16(2)(b) is ultra vires the Constitution, and held that no such leave exists apart from certification for matters of general public importance.

Reasoning

The Court noted that the High Court in Commission on Administrative Justice v. Attorney-General had declared Section 16(2)(b) unconstitutional for adding an extra criterion to the Supreme Court's jurisdiction beyond what Article 163(4) provides. As the apex Court, the Supreme Court recognised this finding and held that the only 'leave' contemplated under Sections 15 and 16 is for matters of general public importance, which must be originated in the Court of Appeal.

p. 15

Legal principles established

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  • A litigant must clearly state which constitutional path their appeal takes to the Supreme Court.
  • An appeal 'as of right' cannot be converted into one needing certification just because filing time expired.
  • The Supreme Court will not hear a leave application while the same request is pending at the Court of Appeal.
  • A certified decree or order from the Court of Appeal is enough to file an appeal; the full judgment is not mandatory.
  • The Supreme Court can revive a late notice of appeal only if the delay is satisfactorily explained.

Court orders

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  1. 1.The applicant's Notice of Motion dated September 5, 2014 is hereby disallowed.
  2. 2.The respondents' costs shall be borne by the applicant.

The bench

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

Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
On appeal from
Court of Appeal at Malindi
Civil Appeal No. 36 of 2013
Jurisdiction invoked
Article 163(4)(a) and (b) of the Constitution; Section 16 of the Supreme Court Act, 2011; Rule 33 of the Supreme Court Rules

Relief refused

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Extension of time to file an appeal to the Supreme Court

The applicant could have filed the appeal without the reasoned judgment; the delay was not satisfactorily explained.

p. 10

Leave to file the proposed appeal directly to the Supreme Court under Section 16 of the Supreme Court Act

Section 16(2)(b) of the Supreme Court Act has been declared unconstitutional by the High Court, and the application for certification must first be made in the Court of Appeal.

p. 15

Costs

The respondents' costs shall be borne by the applicant.

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.

The applicant's Notice of Motion dated September 5, 2014 is hereby disallowed.
p. 16 Final orders dismissing the application
It follows that where a party has elected the path to the Supreme Court 'as of right', that matter cannot be 'converted' to one where certification is required, just because time for filing 'an appeal as of right' has lapsed.
p. 11 Distinction between appeals as of right and appeals requiring certification
Consequently, as the applicant has an application for grant of leave pending at the Court of Appeal, there is no basis in law for entertaining his application in this Court.
p. 12 Pendency of application in Court of Appeal precludes Supreme Court jurisdiction
It is not mandatory that the Judgment of the Appellate Court be part of the record, though under Rule 33(2) the Petition of Appeal is to specify objections to the decision, and indicate the points of law alleged to have been wrongly decided.
p. 10 Contents of record of appeal
This Court has discretion, exercised on the merits of each case, to revive a notice of appeal the prescribed time-frame of which may have lapsed, provided there is a satisfactory explanation of the delay.
p. 16 Discretion to revive lapsed notice of appeal

Key timeline

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2013-11-21
Court of Appeal issues order dismissing the applicant's appeal.
2014-01-13
Court of Appeal delivers its reasoned judgment explaining the order.
2014-09-05
Applicant files Notice of Motion in the Supreme Court seeking leave to appeal.
2024-05-30
Supreme Court disallows the application and orders costs against the applicant.

Practical implications

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For lawyers

Choose appeal route carefully at outset

When filing a Supreme Court appeal, immediately determine whether it lies 'as of right' under Article 163(4)(a) or requires certification under Article 163(4)(b). Do not rely on procedural delays to switch paths. If you miss the 'as of right' deadline, you cannot later seek certification as a workaround. File the correct application from the start to avoid dismissal.

For businesses

Do not file the same request in two courts at once. If your lawyer has already applied for leave to appeal at the Court of Appeal, the Supreme Court will not hear a similar application until the Court of Appeal decides. This wastes time and money. Ensure your legal team coordinates filings to avoid duplication.

For individuals

Know your appeal deadlines and types

If you lose a case and want to go to the Supreme Court, ask your lawyer immediately which type of appeal applies. Some appeals must be filed within strict deadlines. Missing the deadline for one type does not let you switch to another. Also, you can appeal using just the court order, without waiting for the full written judgment.

Frequently asked questions

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Can I change my appeal type in Kenya's Supreme Court after missing a deadline?+

No. The Supreme Court ruled that you cannot convert an appeal 'as of right' into one requiring certification just because you missed the filing deadline. The type of appeal is determined by the nature of your case, not by procedural delays.

Do I need the full Court of Appeal judgment to file a Supreme Court appeal in Kenya?+

No. A certified decree or order from the Court of Appeal is sufficient to file your record of appeal. You do not need to wait for the full reasoned judgment, though you can add it later within 15 days if needed.

Can I apply to the Supreme Court for leave while my application is pending at the Court of Appeal in Kenya?+

No. The Supreme Court will not hear your application if a similar request for certification is still pending at the Court of Appeal. You must wait for the Court of Appeal to decide first.

What happens if I miss the deadline for an 'as of right' appeal to Kenya's Supreme Court?+

You cannot switch to a certification-based appeal just because you missed the deadline. However, the Supreme Court has discretion to revive a late notice of appeal if you provide a satisfactory explanation for the delay.

Later judgments citing this (25)

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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, "Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others", Case Analysis (2015). Civil Application 35 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2015/20/eng@2015-05-27

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