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Case Brief · caselaw.co.ke
Supreme CourtDismissedApplication E035 of 2024

Mohamed v Diamond Trust Bank Kenya Limited & another

Supreme Court of Kenya
11 April 2025
3,094 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Supreme Court dismissed extension of time because applicant failed to diligently follow up on his case.

What this practically means

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John Mwangi wanted to challenge a ruling but missed the deadline. He blamed his lawyers for the delay, saying they followed the wrong rules. The Supreme Court said that excuse was not good enough. The court has its own unique rules, and parties must show interest in their cases even when they have lawyers. The long delay and lack of proof of follow-up led to the dismissal.

Executive summary

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The Supreme Court dismissed an application by John Mwangi seeking extension of time to file an application to review the Court of Appeal's ruling that declined to certify his intended appeal as one of general public importance. The applicant had previously filed an originating motion for review out of time, which was struck out by the Supreme Court on November 29, 2024. The present application sought to extend time to file that motion. The applicant blamed his former advocates for the delay, claiming they mistakenly believed that the Christmas vacation exclusion from time computation and exclusive electronic filing practices from lower courts applied to the Supreme Court. The court found the delay inordinate and not satisfactorily explained. It held that the Supreme Court has its own distinct legal regime under the Constitution, Supreme Court Act, and Rules, and it was disingenuous for counsel to assume otherwise. The court further held that a litigant must show due diligence in following up on their case even when represented, and simply blaming advocates is insufficient. The applicant changed advocates multiple times with similar outcomes and only filed the extension application after the court struck out the earlier motion, indicating a knee-jerk reaction. The court dismissed the application with each party bearing their own costs.

Questions the Court framed

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

  1. 1.Whether the applicant has met the criteria for extension of time as set out in the Nicholas Salat case

Key legal issues

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01

Whether the applicant demonstrated sufficient reason for the delay in filing the originating motion for review out of time.

Holding

The delay was inordinate and not satisfactorily explained. The applicant's counsel's mistaken belief that Christmas vacation exclusion and exclusive electronic filing applied to the Supreme Court was disingenuous, and the applicant failed to show due diligence in following up on his case.

Reasoning

The court applied the principles from the Nicholas Salat case. It found that the applicant's counsel's belief that Supreme Court rules mirrored those of lower courts was disingenuous, as the Supreme Court has its own distinct legal regime. The applicant changed advocates multiple times with similar outcomes, and despite discovering the errors in July 2024, only filed the extension application after the court struck out the originating motion in November 2024, indicating a knee-jerk reaction rather than diligent pursuit.

02

Whether the failure to transmit the notice of appeal is fatal to the application.

Holding

The failure to transmit the notice of appeal is not fatal, as rule 36(4) makes it optional to file a notice of appeal either before or after certification in a matter of general public importance.

Reasoning

The court distinguished the situation from cases where the notice of appeal was defective, citing Arvind Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others for the proposition that rule 36(4) makes filing optional before certification. The court did not find this issue to be a bar to the application.

Legal principles established

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  • A party seeking extension of time must provide cogent evidence of due diligence in pursuing their case.
  • Simply blaming advocates for delay is insufficient to justify extension of time.
  • The Supreme Court operates under its own distinct legal regime, not practices from lower courts.
  • Parties have a responsibility to follow up on their cases even when represented by counsel.
  • Inordinate delay without satisfactory explanation leads to dismissal of the application.
  • Changing advocates multiple times with similar outcomes indicates lack of diligent pursuit.

Court orders

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  1. 1.The notice of motion application dated December 9, 2024 and filed on December 11, 2024 be and is hereby dismissed
  2. 2.Each party to bear their own costs

The bench

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

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal
Civil Application Sup No E001 of 2023
Jurisdiction invoked
Sections 3, 3A and 21(2) of the Supreme Court Act and rules 15(2) and 31 of the Supreme Court Rules

Relief refused

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Extension of time to file an application to review the Court of Appeal's ruling declining certification

The delay was inordinate and not satisfactorily explained; the applicant's counsel's mistaken beliefs about Supreme Court rules were not excusable; the applicant did not demonstrate due diligence in following up on his case.

Costs

Each party to bear their own costs

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 our holding that the delay in filing the application is inordinate and has not satisfactorily been explained.
p. 7 Inordinate delay as a basis for refusing extension of time
there must be cogent and credible evidence that the applicant made concerted efforts or due diligence, through evidence or correspondence of the follow up with the advocates to pursue his rights.
p. 2 Requirement of due diligence by litigant even when represented
the only regime of law that governs proceedings before it is the Constitution, the Supreme Court Act, the Supreme Court Rules and any Practice Directions.
p. 7 Distinct legal regime of the Supreme Court

Key timeline

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2024-07-01
Applicant discovered errors in the filing process but took no immediate action.
2024-11-29
Supreme Court struck out the originating motion for review filed out of time.
2024-12-09
Applicant filed notice of motion seeking extension of time to file the review application.
2025-01-01
Supreme Court dismissed the extension application, citing inordinate delay and lack of due diligence.

Practical implications

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For lawyers

Prove client diligence in delay cases

When seeking extension of time, you must present concrete evidence of your client's follow-up efforts, not just blame previous counsel. The Supreme Court will scrutinize correspondence and steps taken. Ensure you document all communications with your client to show they were actively engaged.

For businesses

Monitor your legal matters actively

Even if you hire a lawyer, you must keep track of deadlines and court filings. This case shows that ignorance of Supreme Court rules or reliance on your lawyer's mistakes won't excuse delays. Assign an internal contact to follow up regularly and confirm all filings are correct and timely.

For individuals

Don't rely solely on your lawyer

If you have a case in Kenya's Supreme Court, stay involved. Ask your lawyer for updates, request copies of filed documents, and note important dates. The court expects you to show interest regardless of your literacy level. Failing to do so could cost you your case.

Frequently asked questions

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

Not usually. The Supreme Court requires you to show you personally followed up on your case, even if you have a lawyer. In John Mwangi v KCB, the court dismissed his excuse of relying on his advocate because he didn't prove he tried to check on the progress himself.

What happens if I miss the deadline to file an appeal in Kenya's Supreme Court?+

You can apply for extension of time, but you must explain the delay convincingly and show you acted diligently. The Supreme Court has its own strict rules. If the delay is long and your explanation is weak, your application will likely be dismissed.

Are the Supreme Court's rules the same as other Kenyan courts?+

No. The Supreme Court has its own regime under the Constitution, Supreme Court Act, and Rules. Practices from lower courts, like Christmas vacation exclusion or electronic filing rules, do not automatically apply. Always check the Supreme Court's specific procedures.

What is the Nicholas Salat case and why does it matter in Kenya?+

The Nicholas Salat case sets the criteria for extension of time applications in Kenya's Supreme Court. It requires an applicant to show the length of delay, reason for delay, chances of success, and prejudice to the other side. The court used this test in John Mwangi v KCB to dismiss the application.

Later judgments citing this (3)

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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, "Mohamed v Diamond Trust Bank Kenya Limited & another", Case Analysis (2025). Application E035 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/17/eng@2025-04-11

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