Richard Nyagaka Tong’i v Chris Munga N. Bichage & 2 others
The bottom line
#The Supreme Court can excuse a late appeal if the error was reasonable, even if the judgment was technically final when announced.
What this practically means
#The Supreme Court of Kenya ruled on a dispute over the timing of an appeal in an election case. The Court of Appeal made a decision on December 11, 2013, but gave its written reasons later, on April 4, 2014. The losing party filed a notice of appeal after the reasons were given, which was technically late. However, the Supreme Court found the delay was reasonable because the legal issue of when a judgment is considered final was complex. The Court allowed the appeal to proceed, stating that the question of whether the election outcome made the appeal pointless would be decided later.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the appeal dated 14th May, 2014 was filed out of time, and so was liable to be struck out for non-compliance with Rules 31(1) and 33(1) of the Supreme Court Rules, 2012
- 2.whether this appeal has been rendered nugatory
Key legal issues
#Whether the Order of 11th December 2013 constituted a 'Judgment' appealable to the Supreme Court, and when time for filing an appeal begins to run when reasons are deferred.
The Order of 11th December 2013 was a Judgment because it finally determined the rights of the parties. Time for filing a Notice of Appeal runs from the date of the decision, not from the date reasons are later delivered.
The Court analyzed the definition of 'Judgment' under various sources including Black's Law Dictionary, the Appellate Jurisdiction Act, and case law such as Sheikha v. Halima. It concluded that a Judgment is a final determination of rights and obligations, and that reasons are not part of the Judgment itself. Therefore, the decision of 11th December 2013 was the Judgment, and time ran from that date. However, the Court exercised its inherent powers to excuse the delay because the issue was complex and the appellant's error was reasonable.
Whether the appeal had been rendered nugatory by the by-election held on 30th December 2013.
The question of whether the appeal has been rendered nugatory touches on the merits and cannot be determined at an interlocutory stage without a full hearing.
The Court distinguished between procedural issues that can be decided at an interlocutory stage and substantive issues that go to the merits of the appeal. It held that the question of mootness or nugatoriness is a substantive issue that requires a full hearing of the appeal to determine.
Whether the Supreme Court can exercise its inherent powers under Rule 3(5) to deem an appeal as duly filed despite non-compliance with time limits.
The Supreme Court has unfettered inherent powers under Rule 3(5) to make such orders as may be necessary in the interest of justice, including deeming an appeal as duly filed where the delay was reasonable and excusable.
The Court cited its decision in Mary Wambui Munene v. Peter Gichuki King'ara & 2 Others where it invoked Rule 3(5) and Rule 53 to admit a petition filed out of time. The Court found that the appellant's error was reasonable given the complex juristic issue of when a Judgment is delivered, and that no prejudice would be caused by allowing the appeal to proceed.
Legal principles established
#- A judgment is a final determination of rights, even if reasons are reserved for later.
- Time for filing a notice of appeal runs from the date of the decision, not from the date reasons are delivered.
- Detailed reasoning of an appellate court is only relevant for drafting a petition of appeal, not a notice of appeal.
- The Supreme Court has inherent powers to deem an appeal as duly filed if the delay was reasonable and excusable.
- The question of whether an appeal has been rendered nugatory by a by-election is a substantive issue that cannot be decided at an interlocutory stage.
Court orders
#- 1.The application of 6th June, 2014 is disallowed.
- 2.The costs of this application shall abide the hearing and disposal of the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Kisumu
- Civil Appeal No. 48 of 2013
- Jurisdiction invoked
- Section 21(2) of the Supreme Court Act, 2011; Rules 23, 31(1) and 33(1) of the Supreme Court Rules, 2012
Relief refused
#Striking out the appeal for being filed out of time
The Court invoked its inherent powers under Rule 3(5) to deem the Notice and Petition of Appeal as duly filed, finding the appellant's error reasonable and excusable.
Striking out the appeal for being rendered nugatory
The Court held that this question touches on the merits and cannot be determined at an interlocutory stage.
Striking out the appeal for being anchored on issues not raised below or for being an abuse of process
The Court did not address these grounds separately, having disposed of the application on the two issues framed.
Costs
The costs of this application shall abide the hearing and disposal of the appeal.
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.
From the foundation of current case law, we would hold that a ‘Judgment’ is a determination or decision of a Court, that finally determines the rights and obligations of the parties to a case, and includes any decree, order, sentence, or essential direction for the execution of the intent of the Court.
Thus, where a Court reserves reasons for Judgment to a later date, time for filing the notice of appeal runs as from the time of the decision, rather than that of the detailed reasons for the decision.
We, therefore, invoke the inherent powers of this Court under Rule 3(5), to deem the Notice of Appeal dated 16th April 2014, and the Petition of Appeal dated 14th May, 2014 as duly filed before this Court.
The application of 6th June, 2014 is disallowed.
The costs of this application shall abide the hearing and disposal of the appeal.
Key timeline
#Practical implications
#Timing of appeals when reasons reserved
When a court reserves reasons for a judgment, the time to file a notice of appeal starts from the date of the decision, not the later reasons. To avoid dismissal, file a notice of appeal immediately after the decision, even if reasons are pending. However, if you miss the deadline due to a reasonable misunderstanding of this rule, you may ask the Supreme Court to use its inherent powers to excuse the delay.
Court deadlines start from the ruling
If your business is involved in litigation and a court makes a ruling that ends the case, do not wait for the written judgment to take action. The deadline to appeal or comply begins the day the ruling is announced. Missing that deadline can be costly, but the Supreme Court may allow a late appeal if the error was reasonable and no prejudice results. Always consult a lawyer immediately after a ruling.
Appeal deadlines: don't wait for reasons
If you lose a court case and the judge says they will give reasons later, you still must file your notice of appeal within the allowed time from the day of the decision. Waiting for the written reasons could make your appeal late. However, the Supreme Court can forgive a late filing if you made an honest mistake about the deadline and there is no harm to the other side. Act quickly and get legal advice.
Frequently asked questions
#What happens if I file an appeal late in Kenya?+
In Kenya, if you file an appeal after the deadline, the court may strike it out. However, the Supreme Court can excuse the delay if it finds the error was reasonable and no prejudice is caused. In this case, the appellant waited for the court's written reasons, which was a reasonable mistake, so the appeal was allowed to proceed.
When does the time to appeal start in Kenya if reasons are given later?+
The time to file a notice of appeal in Kenya starts from the date the court makes its decision, not from when it later gives written reasons. This was confirmed by the Supreme Court in the Tong'i v. Bichage case. Do not wait for the reasons; file your notice of appeal immediately after the ruling.
Can a by-election make an election appeal in Kenya pointless?+
A by-election does not automatically make an election appeal pointless (nugatory) in Kenya. The Supreme Court has said that the question of whether an appeal is moot is a substantive issue that must be decided after a full hearing, not at an early stage. So even if a by-election has been held, the appeal can still proceed.
What is a 'judgment' under Kenyan law for appeal purposes?+
Under Kenyan law, a judgment is a decision that finally determines the rights and obligations of the parties. It includes any order or decree that ends the case. The judgment takes effect when it is announced, even if the judge says written reasons will come later. The time to appeal runs from that announcement.
Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Arusei (Suing as the legal administrator of the Estate of the Late Elizabeth Jepkoech Ruto - Deceased) & 2 others v Ruto (Environment and Land Case E016 of 2023) [2026] KEELC 2377 (KLR)[2026] KEELC 2377 (KLR)29 Apr 2026applied
- Cove Investment Limited v Rono & another (Suing as the Legal Representatives of the Estate of Mathias Kimnyole Langat) & 2 others[2026] KESC 24 (KLR)20 Feb 2026followed
- Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya[2022] KESC 16 (KLR)19 May 2022followed
- Juliana Mutisya & 2 others v National Gender and Equality Commission & another [2020] KEELRC 407 (KLR)[2020] KEELRC 407 (KLR)9 Oct 2020
- Geoffrey M. Asanyo & 3 others v Attorney General[2018] KESC 15 (KLR)20 Nov 2018followed
Cite this brief
#Cite this brief
Caselaw, "Richard Nyagaka Tong’i v Chris Munga N. Bichage & 2 others", Case Analysis (2015). Petition 17 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2015/22/eng@2015-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.