Katiba Institute v Attorney General & 9 others
The bottom line
#Court gave AG more time to file response in JSC commissioner nomination challenge.
What this practically means
#The Supreme Court allowed the Attorney General and two others to file their written responses late in a case about the appointment of Judicial Service Commission commissioners. The court said that asking for extra time is not automatic, but it was fair here because no one objected and the delay would not harm anyone. The respondents must file their responses within 14 days.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court should extend time for the applicants to file their replying affidavits in response to the petition.
Key legal issues
#Whether the court should extend time for the applicants to file replying affidavits.
The court allowed the application, granting leave to file replying affidavits within 14 days, as it was in the interest of justice and unopposed.
The court applied the principles from Nicholas Kiptoo Arap Korir Salat v IEBC, noting that extension of time is discretionary and equitable. The applicants argued no prejudice would occur, the affidavits would reinforce existing grounds, and the application was unopposed. The court also cited Gideon Konchellah v Julius Lekakeny Ole Sunkuli, emphasizing that replying affidavits are foundational and that unopposed applications still require merit review. The court found the application meritorious and granted it.
Legal principles established
#- Extension of time is an equitable remedy, not a right, and is at the court's discretion.
- Court must consider reason for delay, prejudice to other parties, and public interest.
- A replying affidavit is the main document for a respondent's reply; without it, written submissions are meaningless.
- Even when no one opposes an application, the court must still check if it is meritorious.
- The court may grant extensions if it serves the interest of justice.
Court orders
#- 1.The application dated 7th June 2021 and filed on 29th June 2021 is hereby allowed.
- 2.Leave be and is hereby granted to the applicants to file and serve further pleadings in the form of replying affidavits within fourteen (14) days from the date hereof.
- 3.The respondents to file their responses (if any) within 7 days (7) days from the date of service.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Petition No 84 of 2018
- Jurisdiction invoked
- Article 163(4) of the Constitution
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.
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.
A replying affidavit is the principal document wherein a respondent's reply is set and the basis of any submissions and/or list of authorities that may be subsequently filed.
It is not automatic that for any unopposed application, the Court will as a matter of cause grant the sought orders. It behooves the Court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted.
The application dated 7th June 2021 and filed on 29th June 2021 is hereby allowed.
Key timeline
#Practical implications
#File replying affidavits on time
This ruling underscores that a replying affidavit is the primary pleading for a respondent. Without it, submissions are void. Lawyers should ensure clients file timely responses, or seek extension with a clear explanation of delay, no prejudice, and public interest—factors the court weighed favorably here.
Court deadlines can be extended
Businesses involved in litigation should know that missing a filing deadline is not fatal. The court can grant extra time if you show good cause and no harm to the other side. However, this is not automatic—you must apply promptly and explain the delay. An unopposed application still needs merit.
Your response must be in writing
If you are a party to a court case in Kenya, your defense must be in a formal document called a replying affidavit. Verbal arguments or submissions alone are not enough. If you miss the deadline, you can ask the court for more time, but you must give a valid reason and show no unfairness to the other side.
Frequently asked questions
#What is an extension of time in Kenyan courts?+
An extension of time is a court order allowing a party to do something after the original deadline. It is not automatic—the court decides based on fairness, reasons for delay, and whether the other side would be harmed. This ruling shows it can be granted if no one objects and it serves justice.
Can I file a replying affidavit late in Kenya?+
Yes, you can ask the court for permission to file late. In this case, the Supreme Court allowed the Attorney General to file replying affidavits 14 days late because the application was unopposed and no prejudice was shown. But you must explain the delay and show it is in the interest of justice.
What happens if an application is unopposed in Kenya?+
Even if no one opposes your application, the court must still be satisfied that it has merit. The judge does not automatically grant it. In this case, the court checked that the request for extension was reasonable and fair before allowing it. Unopposed does not mean guaranteed.
What is the Supreme Court ruling in Law Society of Kenya v Attorney General?+
The Supreme Court allowed the Attorney General, Public Service Commission, and Patrick Gichohi to file replying affidavits out of time in a case challenging the nomination of JSC commissioners. The court said the extension was equitable and unopposed, and ordered the responses filed within 14 days.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muhia & another v Mbucho (Acting on his own Behalf and as Personal Representative of the Estate of Teresa Minji Mbucho (Deceased) & 2 others (Civil Appeal (Application) E902 of 2023) [2026] KECA 975 (KLR)[2026] KECA 975 (KLR)15 May 2026
- Republic v Mbeere South Sub County Deputy Commissoner & 2 others; Ireri (Interested Party); Murage (Exparte Applicant) (Environment and Land Judicial Review Miscellaneous Application 6 of 2019) [2024] KEELC 3612 (KLR)[2024] KEELC 3612 (KLR)12 Mar 2024
Cite this brief
#Cite this brief
Caselaw, "Katiba Institute v Attorney General & 9 others", Case Analysis (2021). Petition 17 (E017) of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/25/eng@2021-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.