Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtAllowedCivil Application 2 of 2019

Sundowner Lodge Limited v Kenya Tourist Development Corporation

Supreme Court of Kenya
29 April 2019
628 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

Supreme Court grants extension of time to appeal after lawyer's honest mistake about rule change.

What this practically means

#

The Supreme Court of Kenya allowed a man to file his appeal late because his lawyer did not know the rules had changed. The lawyer thought he still needed a certificate before filing a notice of appeal, but that requirement was removed in 2012. The court called this an innocent mistake and said a four-month delay is not too long. The man must file his notice within 14 days or the case will be dismissed.

Executive summary

#
This was an application by Samuel Waruguru Kimotho (the applicant) seeking an extension of time to file a Notice of Appeal against a judgment of the Court of Appeal delivered on 28th September 2018. The applicant's counsel argued that the delay of about four months was caused by ignorance of a 2012 amendment to the Supreme Court Rules, which removed the requirement to obtain certification before lodging a notice of appeal. The applicant relied on several authorities to argue that a procedural error of counsel should not be visited upon a litigant. The respondent opposed the application, arguing that ignorance of the law is not a valid ground for extension of time and that timelines are vital under the Constitution. The Supreme Court, in a unanimous decision, allowed the application. The court found that counsel's ignorance of the amendment was an innocent mistake and that a delay of four months was not inordinate. The court ordered the applicant to file and serve the notice of appeal within fourteen days, failing which the application would stand dismissed with costs. The costs of the application were ordered to abide the result of the intended appeal.

Questions the Court framed

#

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

  1. 1.Whether the applicant should be granted an extension of time to file a Notice of Appeal against the judgment of the Court of Appeal delivered on 28th September 2018.

Key legal issues

#
01

Whether ignorance of a procedural rule amendment by counsel constitutes a sufficient ground for extension of time to file a Notice of Appeal.

Holding

Yes, the court held that counsel's ignorance of the 2012 amendment to the Supreme Court Rules, which removed the requirement to obtain certification before lodging a notice of appeal, was an innocent mistake that warranted the exercise of discretion in favour of the applicant.

Reasoning

The court considered that the applicant's counsel was unaware of the amendment to the Supreme Court Rules that made it unnecessary to obtain certification before lodging a notice of appeal. The court characterized this as an innocent mistake, not an attempt to conceal or delay. The court also noted that the delay of four months was not inordinate. Balancing these factors, the court exercised its unfettered discretion to allow the application, emphasizing that no prejudice would be caused to the respondent.

02

Whether a delay of four months in filing a Notice of Appeal is inordinate.

Holding

No, the court held that a delay of four months is not inordinate.

Reasoning

The court explicitly stated that the delay of only four months was not inordinate. This finding, combined with the innocent mistake of counsel, led the court to allow the application for extension of time.

Legal principles established

#
  • Counsel's ignorance of a procedural rule amendment can be an innocent mistake justifying extension of time.
  • A delay of four months in filing a Notice of Appeal is not inordinate.
  • The Supreme Court has unfettered discretion to grant extension of time.
  • Extension of time may be granted if no prejudice is caused to the respondent.
  • A litigant should not be penalized for an honest mistake by their lawyer.

Court orders

#
  1. 1.The application for extension of time is allowed.
  2. 2.The applicant shall file and serve its notice of appeal within fourteen (14) days of the date hereof.
  3. 3.If the applicant fails to file and serve the notice of appeal within fourteen days, this application shall stand dismissed with costs.
  4. 4.The costs of this application shall abide the result of the intended appeal.

The bench

#

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

majority

Wrote the judgment

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
On appeal from
Court of Appeal at Nairobi
Jurisdiction invoked
Section 3 of the Supreme Court Act and Rules 3(2) & (5), 31 and 53 of the Supreme Court Rules

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.

we find that counsel’s ignorance of the amendment of the Supreme Court Rules in 2012 making it unnecessary “to obtain … certification before lodging the notice of appeal”, was an innocent mistake which they have not sought to hide.
p. 3 Extension of time - innocent mistake of counsel
Moreover, a delay of only four months is not inordinate.
p. 3 Extension of time - inordinate delay
The applicant shall file and serve its notice of appeal within fourteen (14) days of the date hereof failing which this application shall stand dismissed with costs.
p. 3 Final orders - conditional extension of time
The costs of this application shall abide the result of the intended appeal.
p. 3 Costs order

Key timeline

#
2018-09-28
Court of Appeal delivers judgment against the applicant.
About four months later
Applicant files application for extension of time to file Notice of Appeal.
Date not specified
Supreme Court allows the application for extension of time.

Practical implications

#
For lawyers

Stay current on procedural rules

This case warns lawyers to keep up with rule changes. The Supreme Court excused ignorance of a 2012 amendment as an innocent mistake, but don't rely on leniency. To avoid delays, always verify current filing requirements. If a mistake happens, act promptly and explain the error honestly—the court may grant an extension if the delay is short and no prejudice occurs.

For businesses

Monitor legal compliance closely

Businesses involved in litigation should ensure their legal teams are up-to-date on court rules. While this case shows a second chance, it also imposes a strict 14-day deadline to file the notice of appeal. Businesses must push for quick action if a procedural error is discovered. Relying on judicial discretion is risky; proactive compliance is safer.

For individuals

Don't lose hope over lawyer errors

If your lawyer makes a mistake that causes a delay, you may still get a fair hearing. The court considered the lawyer's ignorance of a rule change as an honest mistake and allowed a four-month extension. However, you must act quickly once the error is known. Work with your lawyer to file the necessary documents within the new deadline set by the court.

Frequently asked questions

#
What is the time limit for filing a Notice of Appeal in Kenya?+

In the Supreme Court of Kenya, a Notice of Appeal must be filed within 14 days from the date of the judgment or ruling. However, the court may extend this time if there is a good reason, as shown in this case where a four-month delay was excused due to an honest mistake.

Can ignorance of a rule change be a valid reason for extension of time in Kenya?+

Yes, the Supreme Court of Kenya has held that ignorance of a procedural rule amendment can be an innocent mistake justifying an extension of time. In this case, the lawyer did not know the 2012 amendment removed the need for certification before filing, and the court allowed the extension.

What is considered an inordinate delay in filing an appeal in Kenya?+

A delay of four months was not considered inordinate by the Supreme Court in this case. Courts assess whether the delay is excessive and whether it prejudices the other party. Shorter delays are more likely to be excused, especially if the reason is an honest mistake.

How does the Supreme Court of Kenya decide on extension of time applications?+

The court has unfettered discretion. It considers the length of delay, the reason for the delay (e.g., innocent mistake), whether the applicant has a good chance of success on appeal, and whether the respondent will suffer prejudice. Here, the court found the mistake innocent and the delay not inordinate.

Cite this brief

#

Cite this brief

Caselaw, "Sundowner Lodge Limited v Kenya Tourist Development Corporation", Case Analysis (2019). Civil Application 2 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/71/eng@2019-04-29

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