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Court of AppealStruck OutCivil Application (motion dated 5th March 2025) arising from Civil Appeal No. 174 of 2020

Thiga & 2 others v Thiga (Civil Appeal (Application) 174 of 2020) [2025] KECA 1970 (KLR)

Court of Appeal of Kenya
21 November 2025
FSF. Sicha
1,258 words in judgment
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The bottom line

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The Court of Appeal confirmed it cannot extend time for Supreme Court appeals in Kenya — only the Supreme Court itself can grant that leave.

What this practically means

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Executive summary

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This was an application by notice of motion dated 5th March 2025, made by Loise Nelima Thiga, Robinson Wangome Thiga and Geofirey Wachira Thiga to a single Judge of the Court of Appeal at Nairobi, seeking leave to appeal out of time to the Supreme Court against the Court of Appeal's judgment of 11th October 2024 in Civil Appeal No. 174 of 2020 (S. Ole Kantai, F. Tuiyot and M. Gachoka JJA). The applicants explained that they had filed their Notice of Appeal on 30th October 2024 after mistakenly computing the limitation period in working days rather than calendar days, characterised the resulting four-day delay as a technicality curable under Article 159(2)(d) of the Constitution, and expressed apprehension that the respondent would obtain a grant of letters of administration pursuant to the judgment, rendering any intended appeal nugatory. The respondent countered that the notice of appeal was filed out of time and without leave, and that the applicants' four-month delay in bringing the present application was unexplained and inexcusable. In a ruling delivered by F. Sicha JA on 21st November 2025, the court held that Rule 4 of the Court of Appeal Rules 2022 governs appeals to the Court of Appeal from lower courts and confers no jurisdiction to extend time for appeals to the Supreme Court; such applications must be brought under the Supreme Court Rules 2020 and can only be entertained by the Supreme Court itself. Following Otieno v Ngani and the Supreme Court's decision in Kenya Revenue Authority v Mount Kenya Bottlers, the court found the motion incompetent, struck it out and awarded costs to the respondent.

Questions the Court framed

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

  1. 1.Whether the Court of Appeal, sitting as a single Judge, has jurisdiction under Rule 4 of the Court of Appeal Rules 2022 to grant leave to appeal out of time to the Supreme Court
  2. 2.Whether the applicants' notice of appeal, filed on the basis of a computation of time using working days rather than calendar days, can be cured as a mere procedural technicality under Article 159(2)(d) of the Constitution

Key legal issues

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01

Jurisdiction of the Court of Appeal to grant leave to appeal out of time to the Supreme Court

Holding

The Court of Appeal has no jurisdiction to entertain an application for extension of time to file an appeal to the Supreme Court under Rule 4 of the Court of Appeal Rules 2022; such relief lies exclusively under the Supreme Court Rules, 2020.

Reasoning

Section 15(1) of the Supreme Court Act provides that appeals to the Supreme Court require leave, except for appeals from the Court of Appeal on interpretation or application of the Constitution. Rule 4 of the Court of Appeal Rules 2022 governs appeals to that Court from lower courts, not appeals to the Supreme Court. Relying on Otieno v Ngani and Kenya Revenue Authority v Mount Kenya Bottlers, the single Judge held the remedy lies only in the Supreme Court, and struck out the motion.

p. 2

Legal principles established

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  • Rule 4 of the Court of Appeal Rules 2022 deals with appeals to the Court of Appeal from lower courts and does not confer jurisdiction to extend time for filing an appeal to the Supreme Court; such extension must be sought under the Supreme Court Rules and can only be entertained by the Supreme Court.
  • Any application for extension of time to appeal to the Supreme Court can only be entertained by the Supreme Court and not by any other court, including the Court of Appeal.

Court orders

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  1. 1.The applicants' motion dated 5th March 2025 is struck out
  2. 2.Costs of the application to the respondent

The bench

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

FS
majority

Wrote the judgment

On appeal from
Court of Appeal of Kenya (full bench)
Civil Appeal No. 174 of 2020
Jurisdiction invoked
Rules 4, 5(b), 41, 43 and 55 of the Court of Appeal Rules 2022, invoking the jurisdiction of a single Judge of the Court of Appeal; the court found it lacked jurisdiction to grant leave to appeal to the Supreme Court

Relief refused

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Leave to appeal out of time to the Supreme Court against the judgment of the Court of Appeal delivered on 11th October 2024

The Court of Appeal lacks jurisdiction to grant such leave; 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

p. 2

Costs of the application to be borne from the Estate

The application was struck out with costs to the respondent

p. 3

Costs

Costs of the application to the respondent

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.

It is therefore quite evident that the orders sought by the applicants are not tenable and this Court does not have the jurisdiction to grant the same.
p. 2Absence of jurisdiction in the Court of Appeal to grant leave to appeal out of time to the Supreme Court
This in essence means that such an application can only be entertained by the Supreme Court and not any other court, this Court included.
p. 3Exclusive jurisdiction of the Supreme Court over extension of time applications for appeals to it
The upshot of the foregoing is that the applicants’ motion dated 5th March 2025, is incompetent and the same must fall by the wayside.
p. 3Incompetence of the motion
It is accordingly struck out with costs to the respondent. It is so ordered.
p. 3Final orders - striking out with costs

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Thiga & 2 others v Thiga (Civil Appeal (Application) 174 of 2020) [2025] KECA 1970 (KLR)", Case Analysis (2025). Civil Application (motion dated 5th March 2025) arising from Civil Appeal No. 174 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1970/eng@2025-11-21

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