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Supreme CourtPartially AllowedCivil Application 16 of 2014

Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others

Supreme Court of Kenya
4 July 2014
Mohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. Wanjala
9,507 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~38 min to read original · ~4 min brief

The bottom line

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You must file a notice of appeal within 14 days, even if you need permission to appeal later.

What this practically means

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The Supreme Court ruled that a notice of appeal must be filed within 14 days of the decision you want to challenge. You do not need to wait for permission (certification) from the Court of Appeal before filing that notice. However, if you miss the 14-day deadline and file the appeal anyway, that filing is invalid and cannot be fixed later. You must first ask the court for more time, and only then file your appeal.

Executive summary

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The applicant, Nicholas Kiptoo Arap Korir Salat, lost the Bomet County senatorial election and his subsequent election petition in the High Court and appeal to the Court of Appeal. He sought to appeal to the Supreme Court, filing a notice of appeal within time but then pursuing certification in the Court of Appeal. When that application stalled due to a judge's recusal, the Court of Appeal suggested he could apply directly to the Supreme Court. The applicant then filed both an application for extension of time and a petition of appeal (Petition No 10 of 2014) in the Supreme Court without first obtaining an extension order. The respondents opposed the application, arguing the matter raised no constitutional issues and that the applicant had abused court process. The Supreme Court held that the petition filed out of time without prior leave was a nullity and struck it out. However, the court granted extension of time to file a fresh appeal, finding the applicant had established a prima facie case that the intended appeal involved constitutional interpretation under Articles 38, 81, and 86 of the Constitution, thus engaging the court's jurisdiction under Article 163(4)(a). The court also clarified that under the Supreme Court Rules 2012, a notice of appeal may be filed without prior certification, and that a letter to the Registrar is sufficient to withdraw an application in the Court of Appeal. The court ordered the applicant to bear the respondents' 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 court has jurisdiction to extend time to file an election petition appeal out of time and whether a basis has been satisfactorily laid to warrant extension of time
  2. 2.Whether the intended appeal raises any constitutional matters to warrant appeal as of right
  3. 3.What is the position of the Court of Appeal application No Civil Application Sup No 5 of 2014(UR 2014) seeking certification; is a letter to the Registrar sufficient to withdraw an application before the Court of Appeal?

Key legal issues

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01

Whether the intended appeal raises constitutional matters to warrant appeal as of right under Article 163(4)(a)

Holding

The applicant established a prima facie case that the intended appeal involves interpretation and application of Articles 38, 81, and 86 of the Constitution, which is sufficient at this preliminary stage to approach the court as of right.

Reasoning

The court noted that the draft petition enumerated grounds alleging misapplication and misinterpretation of constitutional provisions governing elections, including Articles 38, 81, and 86. Citing Peter Gatirau Munya v Dickson Mwenda Kithinji, the court held that where specific constitutional provisions form the gist of the cause, the appeal engages the court's jurisdiction under Article 163(4)(a). The court declined to determine the merits of those constitutional questions at this preliminary stage, finding that the applicant had shown a prima facie case.

p. 15
02

Whether the court should extend time to file the appeal out of time

Holding

The court granted extension of time, finding that the applicant had laid a sufficient basis including filing the notice of appeal on time, pursuing certification in the Court of Appeal, and the delay was not deliberate or inordinate.

Reasoning

The court considered the principles for extension of time, noting that the applicant filed the notice of appeal within 14 days, then sought certification in the Court of Appeal which was delayed due to a judge's recusal. The court found the delay was explained and not inordinate, and that the respondents would not suffer prejudice that could not be compensated by costs. The court also considered public interest in election matters.

p. 20
03

Whether Petition No 10 of 2014 filed out of time and without leave is valid

Holding

The petition filed out of time without prior leave is a nullity and is struck out and expunged from the court's record.

Reasoning

The court held that filing an appeal out of time before seeking extension of time is presumptive and inappropriate. Such a filing renders the document a nullity of no legal consequence. The court noted that the proper procedure is to first seek extension of time and annex the draft intended petition for the court's perusal, not to file the appeal and then seek to legalize it.

p. 12
04

Whether a letter to the Registrar is sufficient to withdraw an application before the Court of Appeal

Holding

A party may informally withdraw an application by letter to the Registrar under rule 52 of the Court of Appeal Rules, 2010, and such withdrawal is effective without a court order.

Reasoning

The court cited rule 52 of the Court of Appeal Rules, which allows an applicant to apply informally for leave to withdraw an application. The court held that a party's right to withdraw a matter cannot be taken away, and the court can only make an order as to costs. The court was satisfied that the applicant's letter to the Registrar effectively withdrew the application, so no parallel proceedings existed.

p. 20

Legal principles established

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  • A notice of appeal must be filed within 14 days of the decision; it is a mandatory first step that gives the court jurisdiction.
  • You do not need to obtain certification from the Court of Appeal before filing a notice of appeal to the Supreme Court.
  • Filing an appeal after the deadline without prior court permission is a nullity and cannot be cured by a later request for extension of time.
  • Extension of time is not automatic; you must explain the delay, show you acted without undue delay, and consider prejudice to the other side.
  • The Court of Appeal is bound by Supreme Court decisions, so applications for leave to appeal should first be made in the Court of Appeal.
  • A party can withdraw an application in the Court of Appeal by writing a letter to the Registrar; no court order is needed.

Court orders

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  1. 1.The purported appeal, to wit, Petition No 10 of 2014 is hereby struck out and expunged from the court's record.
  2. 2.The time limited for filing of a petition of appeal by the applicant is hereby extended.
  3. 3.The applicant is granted leave to file an appeal within 14 days from today's date.
  4. 4.The applicant shall bear the respondents' costs in this application.

The bench

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

Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No 228 of 2013
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya 2010; section 15(2) of the Supreme Court Act; rule 53 of the Supreme Court Rules, 2012

Relief refused

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Deeming Petition No 10 of 2014 as duly filed

The petition was filed out of time and without leave, rendering it a nullity

p. 12

Costs

The applicant shall bear the respondents' costs in this application.

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.

The purported appeal, to wit, Petition No 10 of 2014 is hereby struck out and expunged from the court's record. The time limited for filing of a petition of appeal by the applicant is hereby extended. The applicant is granted leave to file an appeal within 14 days from today's date. The applicant shall bear the respondents' costs in this application.
p. 20 Final orders on extension of time and striking out of irregular petition
Under the current court rules, one need not seek and get certification before filing a notice of appeal. A notice of appeal is a primary document to be filed outright whether or not the subject matter under appeal is that which requires leave or not. It is a jurisdictional pre-requisite.
p. 13 Notice of appeal as jurisdictional prerequisite under Supreme Court Rules 2012
To file an appeal out of time and seek the court to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the court. Such a filling renders the 'document' so filed a nullity and of no legal consequence.
p. 12 Nullity of appeal filed out of time without prior leave
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 party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court...
p. 19 Principles for extension of time
The Court of Appeal is bound by the decisions of this court pursuant to article 163(7) of the Constitution: All courts, other that the Supreme Court, are bound by the decisions of the Supreme Court.
p. 12 Binding nature of Supreme Court decisions on Court of Appeal

Key timeline

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2014-03-04
Supreme Court decision in the main election petition (Petition No. 10 of 2014) is delivered.
2014-03-18
Nicholas Kiptoo Arap Korir Salat files a notice of appeal within 14 days.
2014-04-01
Salat files an appeal (Petition No. 10 of 2014) without first seeking extension of time.
2014-04-10
Salat files an application for extension of time to file the appeal.
2014-07-10
Supreme Court strikes out the prematurely filed appeal as a nullity but grants extension of time to file a fresh appeal within 14 days.

Practical implications

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For lawyers

File notice of appeal first, always

Do not wait for certification before filing a notice of appeal to the Supreme Court. File it within 14 days of the judgment. If you miss the deadline for the full appeal, do not file the appeal document. Instead, file an application for extension of time first, attaching the draft appeal. Filing the appeal prematurely makes it void and wastes costs.

For businesses

Strict deadlines in election disputes

If your business is involved in an election-related case (e.g., as a party or interested party), know that deadlines are strict. Missing the 14-day window to file a notice of appeal can end your case. Even if you later get more time, the court will not validate an appeal filed too early. Always act immediately after a judgment.

For individuals

Don't file an appeal late without permission

If you miss the deadline to appeal a court decision, do not file the appeal papers anyway. That filing is legally worthless. Instead, you must first ask the court for permission to file late (extension of time). Explain why you were late and show you acted quickly. The court may grant extra time, but only if you follow the correct procedure.

Frequently asked questions

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What happens if I file an appeal late in Kenya without permission?+

The appeal is automatically invalid and will be struck out by the court. You cannot fix it later by asking for more time. You must first apply for extension of time, explain the delay, and only then file the appeal if the court allows it.

Do I need certification before filing a notice of appeal to the Supreme Court in Kenya?+

No. Under the Supreme Court Rules 2012, you can file a notice of appeal within 14 days of the decision even if you still need to get certification (permission) from the Court of Appeal. The notice of appeal is a mandatory first step.

Can I withdraw a Court of Appeal application in Kenya by letter?+

Yes. Under Rule 52 of the Court of Appeal Rules 2010, you can withdraw an application by writing a letter to the Registrar. No court order is needed. The court can only make an order on costs.

What are the grounds for extension of time to appeal in Kenya?+

You must show: (1) a reasonable explanation for the delay, (2) you applied without undue delay, (3) the other side will not suffer unfair prejudice, and (4) in election cases, public interest matters. Extension is not automatic; it is a discretionary remedy.

Later judgments citing this (25)

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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, "Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others", Case Analysis (2014). Civil Application 16 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/12/eng@2014-07-04

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