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Supreme CourtDismissedCivil Application 10 (E016) of 2022

Shollei v Judicial Service Commission & another

Supreme Court of Kenya
17 February 2023
Philomena Mbete MwiluP.M MwiluSmokin Charles WanjalaC. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
1,082 words in judgment
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The bottom line

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After a final judgment, the Supreme Court cannot extend any deadlines it set in that judgment.

What this practically means

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The Judicial Service Commission (JSC) was ordered by the Supreme Court to publish certain procedures within 90 days of a February 2022 judgment. The JSC missed that deadline. It later asked the court for more time, citing ongoing consultations. The Supreme Court refused. It said that once a final judgment is issued, the court's work is done. It cannot reopen the case to extend deadlines. The court's ruling is final, and parties must follow it strictly. The application was dismissed.

Executive summary

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This ruling arises from an application by the Judicial Service Commission (1st respondent) seeking an extension of time by 90 days to comply with a Supreme Court judgment delivered on February 17, 2022. That judgment had directed the JSC to publish and publicize procedures for its disciplinary and investigative processes through the Kenya Gazette within 90 days. The JSC filed the application on October 19, 2022, after the deadline had passed, citing ongoing stakeholder consultations. The Supreme Court considered whether it had jurisdiction to entertain the application, the legal basis for a consent order, and whether the attached draft manual was the instrument anticipated under section 47 of the Judicial Service Act. The court held that it was functus officio, having rendered a final judgment that brought the matter to a close. The directions were specific and did not require the parties to return to court. Citing the doctrine of functus officio as articulated in Raila Odinga v IEBC, the court found it lacked jurisdiction to extend the timeline. On the draft manual, the court noted it was the requisite legal instrument under section 47 but could give no further directions. The application was dismissed with no order as to costs.

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 entertain this application
  2. 2.The legal provisions under which parties may enter a consent as sought
  3. 3.Whether the draft manual attached to the application is the requisite legal instrument anticipated under section 47 of the Judicial Service Act

Key legal issues

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01

Whether the Supreme Court has jurisdiction to extend time for compliance with its own judgment after the judgment has been perfected.

Holding

The court lacks jurisdiction because it is functus officio; the proceedings were finally concluded and the court cannot re-open deliberation on its directions.

Reasoning

The court had rendered a final judgment on February 17, 2022 directing the 1st respondent to publish procedures within 90 days. That judgment was perfected, and the court had performed all its duties. The doctrine of functus officio prevents the court from reviewing or altering its decision, except for correcting clerical errors. The directions did not require the parties to return to update the court, and the matter was brought to a final close. Therefore, the court cannot extend the timeline.

p. 4
02

Whether the draft manual attached to the application is the requisite legal instrument under section 47 of the Judicial Service Act.

Holding

The draft manual is the requisite legal instrument anticipated under section 47, but the court can say no more than to advise the 1st respondent to be guided by the structure and format of already published regulations.

Reasoning

The court found that the draft manual was developed pursuant to section 47 of the Judicial Service Act, which empowers the 1st respondent to make regulations. However, since the court was functus officio on the main judgment, it could not give further directions. It merely advised the 1st respondent to comply with the form and content of existing regulations.

p. 4

Legal principles established

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  • Once the Supreme Court issues a final judgment, it becomes functus officio and cannot re-open the case.
  • Court orders require strict compliance; the court cannot extend its own deadlines after the judgment is perfected.
  • The court lacks jurisdiction to extend time for compliance with its own judgment after the proceedings are concluded.
  • A draft manual developed under section 47 of the Judicial Service Act is the requisite legal instrument, but the court cannot give further directions on it after final judgment.

Court orders

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  1. 1.The 1st respondent's application is dismissed
  2. 2.No order as to costs

The bench

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

Philomena Mbete Mwilu
P.M MwiluDCJ
Currently serving
majority
Smokin Charles Wanjala
C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
Jurisdiction invoked
Rule 15(2) of the Supreme Court Rules, 2020

Relief refused

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Enlargement of time by 90 days for the 1st respondent to publish and publicize procedures for all its disciplinary and investigative processes through the Kenya Gazette

The court is functus officio and lacks jurisdiction to extend the timeline

p. 4

Costs

No order as to 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.

We determine that this court has finalised the proceedings in this matter and does not have jurisdiction to further determine issues raised by the parties.
p. 4 jurisdiction
Consequently, we dismiss the 1st respondent's application with no order as to costs.
p. 4 final-orders

Key timeline

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2022-02-17
Supreme Court delivers judgment directing JSC to publish procedures within 90 days.
2022-10-19
JSC files application for extension of time, after the deadline had passed.

Practical implications

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For lawyers

Functus officio strictly applied

Lawyers must advise clients to comply with court orders within the set timelines. If a party needs more time, they must apply before the deadline or before the judgment is perfected. After the judgment is final, the court cannot extend deadlines. This ruling reinforces that no post-judgment applications for extension will be entertained.

For businesses

Court orders are final

Businesses must treat court-ordered deadlines as absolute. Missing a deadline and then seeking an extension after the fact will not succeed. The court's jurisdiction ends with the final judgment. To avoid penalties, ensure compliance within the original timeline or seek an extension before the deadline expires.

For individuals

Strict compliance required

Individuals under court orders must act by the deadline. If you cannot meet the deadline, ask the court for more time before the deadline passes. Once the court issues a final judgment, it cannot change its orders. Missing the deadline could leave you without recourse.

Frequently asked questions

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Can the Supreme Court extend its own deadline in Kenya?+

No, the Supreme Court cannot extend deadlines in its own final judgment. Once it issues a final judgment, it becomes functus officio, meaning it has no further jurisdiction. Parties must comply strictly with the original timeline.

What happens if you miss a court-ordered deadline in Kenya?+

If you miss a deadline set by a court order, the court may not extend it after the final judgment. You should seek an extension before the deadline passes. Otherwise, you risk being in non-compliance with no way to remedy.

What is functus officio in Kenya?+

Functus officio is a legal principle meaning a court or official has completed its duty and cannot re-open a case. The Supreme Court applied this doctrine to refuse an extension of time after a final judgment.

Can the Judicial Service Commission be forced to comply with court orders in Kenya?+

Yes, the Judicial Service Commission, like any other party, is bound by court orders. In this case, the Supreme Court ordered it to publish procedures within 90 days. The court refused to extend the deadline, emphasizing strict compliance.

Later judgments citing this (22)

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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, "Shollei v Judicial Service Commission & another", Case Analysis (2023). Civil Application 10 (E016) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/8/eng@2023-02-17

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