Ithongo (Suing as Legal Representative of the Estate of Geofirey Ithongo Thindiu Deceased) v Ithongo (Suing as Legal Representative of the Estate of Ishmael Ithongo Deceased)
The bottom line
#Supreme Court rejects delay appeal for using wrong rules and failing to explain one-year wait.
What this practically means
#The Supreme Court dismissed an application to appeal out of time. The applicant used the wrong court rules and waited over a year to file. The court said extending time is not automatic and requires a good reason. Because the applicant gave no proper explanation and used the wrong procedure, the case was thrown out. The matter was also very old, and reopening it would harm the other side.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has satisfied the principles for extension of time as set out in Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission & 7 others
- 2.Whether the application is properly before the Court under the correct legal framework
Key legal issues
#Whether the applicant's reliance on the Civil Procedure Rules instead of the Supreme Court Rules renders the application liable to striking out.
Yes, the application is liable to striking out for relying on the wrong procedural framework.
The Supreme Court has consistently held that its jurisdiction is exercisable only under the Constitution, the Supreme Court Act, and the Supreme Court Rules. The applicant erroneously invoked the Civil Procedure Rules, which are not applicable in proceedings before this Court. This error, combined with the failure to cite the correct provisions, makes the application defective.
Whether the applicant provided sufficient explanation for the one-year delay in filing the appeal.
No, the applicant failed to give sufficient reasons for the delay.
The applicant claimed he was not served with notice of the ruling date, but the respondent countered that he was present in court when the ruling date was issued. The court found the explanation inadequate, noting that the delay of about one year was inordinate and unexplained to the court's satisfaction.
Whether reopening the matter after 43 years would prejudice the respondent.
Yes, it would greatly prejudice the respondent.
The original judgment of the Court of Appeal was delivered on 10th July 1981, and the matter had been settled for over four decades. The court considered that reopening such an old dispute would cause substantial prejudice to the respondent, who had relied on the finality of the judgment.
Legal principles established
#- Extension of time is a discretionary remedy, not a right.
- Applicant must satisfy the court with a proper basis and explanation for delay.
- Delay must be explained to the court's satisfaction; inordinate delay is fatal.
- Only the Constitution, Supreme Court Act, and Supreme Court Rules apply in the Supreme Court.
- Reopening a very old settled case can cause prejudice to the other party.
Court orders
#- 1.The Notice of Motion dated 8th September, 2023 and filed on 30th October, 2023 be and is hereby dismissed.
- 2.There shall be no order as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal Case No. 16 of 1981
- Jurisdiction invoked
- Rule 15(2) of the Supreme Court Rules, 2020
Relief refused
#Leave to appeal out of time against the ruling of the Court of Appeal delivered on 23rd September 2022
The applicant failed to give sufficient reasons for the delay of one year, failed to annex a draft petition of appeal, and relied on inapplicable Civil Procedure Rules.
Costs
There shall be no order as to 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.
The Notice of Motion dated 8th September, 2023 and filed on 30th October, 2023 be and is hereby dismissed.
There shall be no order as to costs.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court
the only applicable sources of law when moving the Supreme Court are the Constitution, the Supreme Court Act, and the Supreme Court Rules, 2012. The Appellate Jurisdiction Act is not applicable when moving this Court. Neither is the Civil Procedure Code.
Key timeline
#Practical implications
#Strict adherence to Supreme Court rules
Always use the correct procedural framework when moving the Supreme Court. Relying on the Civil Procedure Rules or Court of Appeal Rules will render your application defective. Cite the Constitution, Supreme Court Act, and Supreme Court Rules explicitly. Failure to do so invites striking out, even if the substantive case is strong.
Finality protects long-settled disputes
Businesses that rely on court judgments from decades ago can take comfort: the court is reluctant to reopen cases after long delays. To maintain this certainty, ensure you comply with court orders promptly and keep records. If challenged, emphasize the prejudice of reopening old matters.
Act quickly and use correct rules
If you miss an appeal deadline, do not wait. File for extension of time as soon as possible, and use the correct rules of the court you are appealing to. A one-year delay with no good explanation will likely get your application dismissed. Also, attach a draft appeal to show you have a serious case.
Frequently asked questions
#What is extension of time in the Supreme Court of Kenya?+
Extension of time is a discretionary remedy that allows a party to file an appeal after the deadline. It is not automatic. The applicant must give a good reason for the delay and follow the Supreme Court rules strictly.
Can I use the Civil Procedure Rules in the Supreme Court of Kenya?+
No. The Supreme Court only applies the Constitution, the Supreme Court Act, and the Supreme Court Rules. Using the Civil Procedure Rules will make your application defective and liable to be struck out.
How long can I wait to appeal a court decision in Kenya?+
There is no fixed maximum time, but any delay must be explained to the court's satisfaction. In this case, a one-year delay was considered inordinate and unexplained. The sooner you act, the better your chances.
Can I appeal a land dispute that was settled 43 years ago in Kenya?+
The court is very reluctant to reopen cases that have been settled for decades. Doing so would prejudice the other party who relied on the finality of the judgment. You must have exceptional reasons to succeed.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Ithongo (Suing as Legal Representative of the Estate of Geofirey Ithongo Thindiu Deceased) v Ithongo (Suing as Legal Representative of the Estate of Ishmael Ithongo Deceased)", Case Analysis (2024). Application E033 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/17/eng@2024-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.