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Supreme CourtDismissedApplication E024 of 2024· [2024] KESC 72 (KLR)

Kithangari & 4 others v Mutahi

Supreme Court of Kenya
29 November 2024
1,790 words in judgment
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The bottom line

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The Supreme Court dismissed an application for extension of time due to an unexplained 68-day delay.

What this practically means

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The Supreme Court said that asking for more time to file an appeal is not a right; it is a favour the court can grant. The applicants blamed their lawyers for missing the deadline, but they did not provide any proof that they had tried to follow up. Without evidence, the court found the 68-day delay too long and refused to extend the time. Each party paid their own costs.

Executive summary

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This was an application by Muriithi Kithangari and two others (the applicants) seeking leave to file a notice of appeal out of time against a judgment of the Court of Appeal at Nyeri delivered on 7 June 2024. The Court of Appeal had set aside a decision of the Meru Environment and Land Court which had dismissed the respondent's case and allowed the applicants' counterclaim. The applicants sought to appeal to the Supreme Court but filed their application for extension of time on 28 August 2024, 68 days after the 14-day period for filing a notice of appeal had expired. The applicants blamed the delay on inaction and unresponsiveness of their previous advocates. The respondent opposed the application, arguing the delay was inordinate and unexplained, and that the applicants had been indolent. The Supreme Court, applying the principles from the Nicholas Kiptoo Arap Salat case, held that extension of time is an equitable remedy not a right, and the applicant bears the burden of providing a satisfactory explanation for the delay. The court found that the applicants had placed no evidence before it to substantiate their claims of advocate negligence, such as correspondence or proof of follow-up. Citing its decisions in Muya, Karani, and Gaciani, the court held that the delay of 68 days was inordinate and undeserving of its discretion. The application was dismissed, and each party was ordered to bear their own costs.

Key legal issues

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01

Whether the applicants provided a satisfactory explanation for the 68-day delay in filing the notice of appeal.

Holding

The applicants failed to provide a satisfactory explanation; their claim of advocate inaction was unsubstantiated by any evidence or correspondence, and the delay was found to be inordinate.

Reasoning

The court applied the principles from the Nicholas Salat case and its own decisions in Muya and Karani, focusing not just on the length of delay but on the justification. The applicants blamed their advocates but placed no evidence of follow-up or correspondence before the court. The court held that parties have a responsibility to show interest in their cases even when represented, and the delay of 68 days without credible explanation was inordinate, thus undeserving of the court's discretion.

02

Whether the court should exercise its discretion to extend time under rules 15(2) and 36(1) of the Supreme Court Rules, 2020.

Holding

The court declined to exercise its discretion because the applicants failed to meet the burden of providing a reasonable reason for the delay.

Reasoning

The court reiterated the seven principles from the Nicholas Salat case, particularly that the applicant bears the burden of laying a basis to the court's satisfaction. Since the applicants did not provide credible evidence of advocate negligence or any due diligence, the court found no basis to grant the equitable remedy of extension of time.

Legal principles established

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  • Extension of time is an equitable remedy, not a right, and the court decides at its discretion.
  • The applicant must provide a reasonable and satisfactory explanation for the delay.
  • Blaming an advocate requires credible evidence, such as correspondence or proof of follow-up.
  • Parties must show due diligence in their cases even when represented by lawyers.
  • An inordinate delay without justification does not warrant the court's discretion.
  • The length of delay alone is not decisive; the quality of the explanation matters.

Court orders

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  1. 1.The notice of motion application dated 28 August 2024 be and is hereby dismissed.
  2. 2.Each party shall bear their costs of the application.

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 163(4)
  • Supreme Court Rules, 2020Rule 15(2)
  • Supreme Court Rules, 2020Rule 36(1)

Cases cited (10)

  • Nicholas Kiptoo Arap Salat v IEBC & 7 others
    [2014] eKLR
  • Henry Mukora Mwangi v Charles Gichina Mwangi
    Civil App. No. 26 of 2004
  • Arvind Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others
    SC Pet No 18 (E020) of 2022
  • Karinga Gaciani & 11 others v Ndege Kabibi Kimanga & ano
    SC Appl No E004 of 2024
  • KARI v Peter Wambugu Kariuku & 16 others
    SC Appl No E001 of 2023 [2023] KESC 25 (KLR)
  • Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya
    Petition 4 of 2020 [2022] KESC 16 (KLR)
  • Karani v Judicial Service Commission
    Petition 3 of 2021 [2022] KESC 37 (KLR)
  • Gaciani & 11 others v Kimanga & another
    Application E004 of 2023 [2023] KESC 23 (KLR)
  • George Kang’ethe Waruhiu v Esther Nyamweru Munene & another
    Civil Application No 18 of 2020 [2021] eKLR
  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    Sup. Ct. Petition No 4 of 2012; [2014] eKLR
On appeal from
Court of Appeal at Nyeri
Civil Appeal No 105 of 2021
Jurisdiction invoked
Article 163(4)(a) of the Constitution (implied from the intended appeal; the application is for extension of time under rules 15(2) and 36(1) of the Supreme Court Rules, 2020)

Key timeline

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2024-06-07
Court of Appeal at Nyeri delivered judgment setting aside the Environment and Land Court decision.
2024-06-21
Deadline to file notice of appeal to the Supreme Court expired (14 days after judgment).
2024-08-28
Applicants filed a notice of motion seeking extension of time to file the notice of appeal.
2024 (date not specified)
Supreme Court dismissed the application for extension of time, finding the 68-day delay unexplained and inordinate.

Practical implications

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For lawyers

Document client follow-up on appeals

When a client claims you caused a delay, the court will require 'cogent and credible evidence' of your negligence—not just a client's word. Maintain written records of all instructions, reminders, and communications with clients about deadlines. Without such evidence, the court may still find the client responsible for showing due diligence.

For businesses

Monitor your legal matters actively

Even if you have hired a lawyer, you must show interest in your case. The court noted that the applicants placed 'no evidence of follow-up' with their advocates. Businesses should regularly request updates and keep copies of correspondence. This proactive approach protects your rights and helps avoid losing appeals due to unexcused delays.

For individuals

You cannot simply blame your lawyer

If you miss a court deadline, saying 'my lawyer didn't act' is not enough. The court expects you to provide proof—such as emails, letters, or call logs—that you tried to check on the progress of your appeal. Without that evidence, the court will treat the delay as your own fault and refuse to extend time.

Frequently asked questions

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What is extension of time in Kenya?+

Extension of time is a court order that allows a party to file a document, such as a notice of appeal, after the legal deadline has passed. It is not automatic; the applicant must convince the court that there was a good reason for the delay.

How long is an inordinate delay for an appeal in Kenya?+

There is no fixed number of days, but a delay of 68 days was considered inordinate in this case. The key is not just the length but whether the applicant gives a credible explanation. Even a shorter delay can be fatal if the reason is weak.

Can I blame my lawyer for missing a deadline in Kenya?+

Yes, but you must provide solid evidence that you followed up and your lawyer ignored you. The court said 'cogent and credible evidence' is needed. Without proof of correspondence or attempts to contact your lawyer, the court will likely hold you responsible.

What happens if my extension of time application is dismissed in Kenya?+

Your appeal cannot proceed because the notice of appeal was not filed on time. The court will not grant you more time, and the earlier judgment stands. In this case, each party also had to pay their own costs.

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, "Kithangari & 4 others v Mutahi", Case Analysis (2024). Application E024 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/72/eng@2024-11-29

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