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Supreme CourtDismissedApplication 8 of 2017

Parliamentary Service Commission v Wambora & 36 others

Supreme Court of Kenya
21 December 2018
David Kenani MaragaD. K. MaragaPhilomena Mbete MwiluP. M. MwiluMohammed Khadhar IbrahimM. K. IbrahimJackton Boma OjwangJ. B. OjwangNjoki Susanna NdunguN. Ndung'u
4,064 words in judgment
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The bottom line

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Supreme Court dismisses review of its own extension of time decision, upholds strict limits on review.

What this practically means

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The Supreme Court of Kenya dismissed an attempt by the Parliamentary Service Commission to review a previous decision that refused to extend time for filing an appeal. The Court said review is not a chance to re-argue a case. To succeed, you must show the judges made a clear error or acted unfairly. Simply being unhappy with the outcome is not enough. The Court also warned that using constitutional principles like Article 159(2)(d) cannot excuse missing deadlines.

Executive summary

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The Supreme Court (Maraga CJ, Mwilu DCJ, Ibrahim, Ojwang & Ndung'u SCJJ) unanimously dismissed an application by the Parliamentary Service Commission to review a Two Judge Bench decision (Wanjala & Lenaola SCJJ) that had refused to extend time for filing an appeal. The Court first addressed jurisdiction, holding that it had power under Section 24(2) of the Supreme Court Act to review a decision made by a limited bench under Section 24(1), even though the decision was not by a single judge. The Court clarified that Rule 4(4) of the Supreme Court Rules, which provides for review of a single judge's decision, did not apply because the original application for extension of time was not one of the matters reserved for a single judge under Rule 4(3). On the merits of the review, the Court laid down six guiding principles for reviewing the exercise of discretion, drawn from the East African Court of Appeal decision in Mbogo v Shah. These principles require the applicant to demonstrate that the judges misdirected themselves or acted whimsically, and that the review is not an opportunity to re-litigate the original application. The Court found that the Applicant failed to meet this threshold, as its submissions, such as the claim that the judges ignored public interest, were grounds of appeal, not review. The Court also rejected the invocation of Article 159(2)(d) of the Constitution as a basis for review, reiterating that it is not a panacea for procedural shortfalls. The application was dismissed with costs to the 1st Respondent.

Questions the Court framed

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

  1. 1.Whether this Court has jurisdiction to determine this review application; and if yes
  2. 2.Whether a case has been made to warrant that review

Key legal issues

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01

Whether the Supreme Court has jurisdiction to review a decision made by a Two Judge Bench under Section 24(2) of the Supreme Court Act and Rule 4(4) of the Supreme Court Rules.

Holding

The Court has jurisdiction to review a decision of a limited Bench (including a Two Judge Bench) made under Section 24(1) of the Act, as the power to review under Section 24(2) is not limited to decisions of a single judge.

Reasoning

The Court interpreted Section 24(2) and Rule 4(4) in their wider context. It held that Rule 4(4) does not apply because the application for extension of time was not one of the matters listed under Rule 4(3) for a single judge. However, the decision was made under Section 24(1), and Section 24(2) provides for review of such decisions. The Court also noted that the powers of a single judge can be exercised by a collegial bench, and a decision by a limited bench is subject to review by a five-judge bench.

p. 9
02

Whether the Applicant made a case to warrant review of the Two Judge Bench's decision dismissing the application for extension of time.

Holding

The Applicant failed to meet the threshold for review because it did not demonstrate that the judges misdirected themselves or acted whimsically; instead, it sought to re-litigate the original application.

Reasoning

The Court laid down six guiding principles for review of exercise of discretion. Applying these, it found that the Applicant's submissions, such as the claim that the judges failed to consider public interest, were grounds of appeal, not review. The Applicant did not show how the judges abused their discretion. The Court also rejected the invocation of Article 159(2)(d) as a basis for review, noting it is not a panacea for procedural shortfalls.

p. 11

Legal principles established

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  • Review of a court's exercise of discretion is not automatic; the applicant must show the court erred or acted whimsically.
  • A review application is not an appeal or a chance to re-argue the original case.
  • The power to review under Section 24(2) of the Supreme Court Act applies to decisions by a limited bench, not just a single judge.
  • Review is an equitable remedy to be exercised sparingly and only in deserving cases to prevent abuse of court process.
  • Constitutional principles like Article 159(2)(d) cannot be used to excuse procedural failures or to justify a review.

Court orders

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  1. 1.The Notice of Motion dated 20th April, 2017 is hereby dismissed.
  2. 2.The Applicant shall bear the 1st Respondent’s costs

The bench

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

David Kenani Maraga
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Njoki Susanna Ndungu
N. Ndung'uSCJ
Currently serving
majority
On appeal from
Supreme Court of Kenya
Application No. 10 of 2016
Jurisdiction invoked
Sections 21(2) and 24(2) of the Supreme Court Act, 2011, Rule 4(4) of the Supreme Court Rules, 2012

Relief refused

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Review of the decision of the Two Judge Bench delivered on 24th March 2017 in Application 10 of 2016

The Applicant failed to demonstrate how the judges abused their discretion; the application was a re-litigation of the earlier application.

p. 11

Extension of time to file an appeal from the decision of the Court of Appeal in Civil Appeal 194 of 2015

The application for review was dismissed, so the extension of time was not granted.

p. 11

Costs

The Applicant shall bear the 1st Respondent’s 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.

A review of exercise of discretion is not as a matter of course to be undertaken in all decisions taken by a Limited Bench of this Court.
p. 10 Principle governing review of exercise of discretion
An application for review of exercise of discretion is not an appeal or a chance for the applicant to re-argue his/her application.
p. 11 Nature of review application
The review window is to be exercised sparing and only deserving cases have to be allowed.
p. 10 Sparing exercise of review jurisdiction

Key timeline

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20 April 2017
Parliamentary Service Commission files Notice of Motion for extension of time to file an appeal.
Before 2017
Two-Judge Bench of the Supreme Court dismisses the extension of time application.
After dismissal
Commission applies for review of the Two-Judge Bench decision.
Not specified
Supreme Court (full bench) dismisses the review application with costs to the 1st respondent.

Practical implications

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For lawyers

Limit review arguments to error

When filing a review of a discretionary decision, do not repeat the merits of the original application. Instead, focus specifically on how the judges misdirected themselves, acted on wrong principles, or were plainly unreasonable. Citing public interest or constitutional provisions without showing procedural error will not succeed. The Court emphasised that review is not a backdoor appeal.

For businesses

Deadlines matter; review is rare

If you miss a court deadline, filing for extension of time is a serious step. The court has wide discretion, and a refusal is hard to overturn. Do not expect a review to save you unless the judges clearly ignored the law or facts. Ensure you act promptly and have strong reasons for delay; otherwise, you may be stuck with the original refusal and face costs.

For individuals

Don't rely on review to fix delays

If you are a party in a case and miss a deadline, you can ask for more time, but the court may say no. Challenging that refusal is very difficult—you must show the judges made a clear mistake, not just that you disagree. Even if you think the court ignored public interest, that alone is not enough for a review. Plan ahead and file on time to avoid this situation.

Frequently asked questions

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Can the Supreme Court of Kenya review its own decision to deny an extension of time?+

Yes, the Supreme Court has jurisdiction to review a decision made by a limited bench (like two judges) under Section 24(2) of the Supreme Court Act. But the review is only granted in rare cases where the applicant shows the judges clearly misdirected themselves or acted arbitrarily.

What is the difference between an appeal and a review in Kenya?+

An appeal challenges the correctness of a decision on its merits. A review, however, only challenges the way the court exercised its discretion. You cannot re-argue the whole case in a review. The court will only intervene if the original judges made a serious error or acted unfairly.

How do you succeed in a review application at the Supreme Court of Kenya?+

You must show that the judges misdirected themselves, acted on wrong principles, or were clearly unreasonable. Mere dissatisfaction with the outcome is not enough. The review is not a chance to repeat your arguments. It is a narrow remedy used sparingly to correct clear abuse of discretion.

Does Article 159(2)(d) of Kenya's Constitution allow the court to ignore procedural rules for review?+

No. The Supreme Court has said Article 159(2)(d), which promotes substantive justice, does not override procedural deadlines or excuse missing steps. It is not a 'panacea' for procedural failures. You must follow the rules and show a proper case for review; the Constitution does not give you a free pass.

Later judgments citing this (16)

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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, "Parliamentary Service Commission v Wambora & 36 others", Case Analysis (2018). Application 8 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/74/eng@2018-12-21

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