Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtDismissedPetition (Application) 27 (E031) of 2022

Mwambora & 9 others v Spire Properties (K) Limited & 50 others

Supreme Court of Kenya
17 February 2023
1,403 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Court rejects late appeal because lawyer's busy schedule is not a valid excuse.

What this practically means

#

The Supreme Court dismissed an application to file an appeal late. The applicants missed the 14-day deadline by three days. Their lawyer said he was busy with election matters and miscalculated the days in July. The court found this explanation was not good enough. It said extension of time is a favor, not a right. Since the appeal was not filed on time, the entire petition was struck out, and the applicants must pay the respondents' costs.

Executive summary

#
This was an application for extension of time to file a notice of appeal and record of appeal against a Court of Appeal judgment delivered on July 29, 2022. The applicants filed the notice of appeal on August 15, 2022, three days after the 14-day deadline under rule 36(1) of the Supreme Court Rules, 2020. They attributed the delay to their counsel's involvement in election matters and a mistaken belief that July had 30 days. The 1st and 2nd respondents opposed the application, raising preliminary objections on jurisdiction. The Supreme Court, applying the principles from Nicholas Kiptoo Arap Korir Salat v IEBC, held that extension of time is an equitable remedy, not a right, and the applicants failed to satisfactorily explain the delay. The court found the explanation escapist, bare, and an afterthought, as the error was only discovered after the 1st respondent raised it. Consequently, the court dismissed the application for extension of time, struck out the petition of appeal, and ordered the applicants to bear costs. The court did not consider the preliminary objections as there was no valid petition before it.

Questions the Court framed

#

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

  1. 1.Whether the applicants have satisfactorily explained the delay in filing the notice of appeal out of time.
  2. 2.Whether the court should exercise its discretion to extend time for filing the notice of appeal and record of appeal.

Key legal issues

#
01

Whether the applicants provided sufficient reasons for the delay in filing the notice of appeal.

Holding

The court held that the applicants did not satisfactorily explain the delay; the explanation that counsel was busy with election matters and miscalculated the days was escapist, bare, and an afterthought.

Reasoning

The judgment of the Court of Appeal was delivered on July 29, 2022, so the notice of appeal was due by August 12, 2022. The applicants filed it three days late on August 15, 2022. Their counsel claimed he was busy with election preparedness and mistakenly thought July had 30 days. The court found this explanation unsatisfactory because it was only discovered after the 1st respondent raised it, making it an afterthought. The court emphasized that extension of time is an equitable remedy, not a right, and the applicants failed to meet the burden of proof.

02

Whether the court should consider the preliminary objections before the application for extension of time.

Holding

The court declined to consider the preliminary objections because the application for extension of time was dismissed, leaving no lawful petition before the court.

Reasoning

Having disallowed the application for extension of time, the court found there was no proper petition before it. Consequently, the preliminary objections could not attract the court's attention, as they were moot in the absence of a valid appeal.

Legal principles established

#
  • Extension of time is an equitable remedy, not a right, and is granted only at the court's discretion.
  • The applicant bears the burden to provide a satisfactory explanation for the delay.
  • A bare or escapist explanation, such as counsel being busy elsewhere, will not suffice.
  • An explanation raised only after the respondent points out the delay is an afterthought and will be rejected.
  • If the application for extension of time fails, the underlying appeal is struck out as there is no valid petition before the court.

Court orders

#
  1. 1.The notice of motion dated October 17, 2022 is hereby dismissed.
  2. 2.The petition of appeal dated September 13, 2022 is hereby struck out.
  3. 3.The applicants shall bear the costs of this application.

The bench

#

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

Philomena Mbete Mwilu
P M MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S C WanjalaSCJ
Currently serving
majority
Isaac Lenaola
I LenaolaSCJ
Currently serving
majority
William Ouko
W OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Mombasa
Civil Appeal No 135 of 2018
Jurisdiction invoked
rules 15 and 31 of the Supreme Court Rules, 2020

Relief refused

#

Extension of time to file notice of appeal and record of appeal

The applicants did not satisfactorily explain the delay; the explanation was escapist, bare, and an afterthought.

Costs

The applicants shall bear the costs of this application.

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.

It is our considered view that the applicants have not satisfactorily explained the reasons for that delay and as a consequence, we disallow the application for extension of time.
p. 5 Extension of time - insufficient explanation
The explanation that counsel was busy elsewhere does not meet our favour at all as it is escapist and bare.
p. 5 Extension of time - standard of explanation

Key timeline

#
2022-07-29
Court of Appeal delivers judgment against the applicants.
2022-08-12
Deadline for filing notice of appeal (14 days after judgment).
2022-08-15
Applicants file notice of appeal, three days late.
2022-09-13
Applicants file petition of appeal.
2022-10-17
Applicants file application for extension of time.
2024-03-07
Supreme Court dismisses the application and strikes out the petition.

Practical implications

#
For lawyers

Strict deadlines, no busy schedule excuse

When filing appeals in the Supreme Court, ensure strict compliance with the 14-day deadline under rule 36(1). If you miss it, prepare a detailed, credible explanation for each day of delay. Blaming a busy schedule or miscalculating calendar days will be rejected as escapist. The court will not grant extension if the explanation appears to be an afterthought raised only after the respondent objects.

For businesses

Missed deadlines can kill your appeal

If you lose a case and want to appeal to the Supreme Court, you have only 14 days to file a notice of appeal. Missing that deadline by even a few days can result in your entire appeal being struck out. Your lawyer's workload or a simple miscalculation will not be accepted as a valid excuse. Act immediately after judgment to avoid losing your right to appeal.

For individuals

Don't rely on lawyer's busy schedule

If you are involved in a court case and your lawyer misses a filing deadline, the court may not forgive the delay. The Supreme Court has made clear that a lawyer being 'too busy' is not a good reason. You should follow up with your lawyer to ensure all deadlines are met. If your appeal is dismissed for lateness, you may have to pay the other side's legal costs.

Frequently asked questions

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

You can apply for extension of time, but you must provide a very good reason for the delay. The court will only grant it if you explain each day of delay satisfactorily. If the court rejects your application, your appeal will be struck out and you may have to pay the other side's costs.

Can I appeal to the Supreme Court of Kenya after the 14-day deadline?+

Yes, but only if you apply for extension of time and convince the court that the delay was excusable. The court has discretion to extend time, but it is not automatic. You must show a reasonable explanation, such as illness or other serious impediment, not just that your lawyer was busy.

What is the deadline for filing a notice of appeal in Kenya's Supreme Court?+

Under rule 36(1) of the Supreme Court Rules, 2020, you must file the notice of appeal within 14 days from the date of the judgment or ruling you wish to appeal. This deadline is strict, and missing it can jeopardize your entire appeal.

What does 'extension of time is an equitable remedy' mean in Kenya?+

It means the court is not obligated to give you extra time. It is a favor the court may grant if you deserve it. You must prove that you acted in good faith, the delay was not intentional, and you have a strong case. The court will balance fairness to both sides before deciding.

Later judgments citing this (3)

#

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, "Mwambora & 9 others v Spire Properties (K) Limited & 50 others", Case Analysis (2023). Petition (Application) 27 (E031) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/12/eng@2023-02-17

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