Every period in Order 5 Division 2 is short, and the two extension provisions are drafted so that an applicant who lets a deadline pass has no application to make.
Order 5 Rule 14
The application for leave shall be filed and served within 14 days after the decision sought to be reviewed or within such time as extended by a Judge, upon application filed within that 14-day period.
Both filing and service must happen within the 14 days. That is stricter than an appeal, where Order 7 Rule 11 deems filing to satisfy sections 17 and 29, and service is a separate obligation under Rule 13.
The extension application must be filed inside the period. “Upon application filed within that 14-day period” — the same structure as section 17 of the Supreme Court Act, and with the same consequence: once day 14 passes, there is nothing to extend.
Order 5 Rule 18
The application for review shall be filed within 14 days from the date of grant of leave or within such further extended period as the Judge determines upon application made within those 14 days.
Compare Order 7 Rule 6 for appeals, which allows 21 days from the grant of leave. Fourteen days here, and the extension must again be sought inside the period.
Every period in Division 2
| Step | Period | Rule |
|---|---|---|
| File and serve the application for leave (Form 5A) | 14 days after the decision | r 14 |
| Serve the leave application and affidavit before it is heard | Not less than 3 days; affidavit of service filed within that period | r 15 |
| File the application for review (Form 5B) with draft Index | 14 days from the grant of leave | rr 18, 20 |
| Serve the application and draft Index on the respondents | 7 days of filing | r 25 |
| Respondents file a Notice of Appearance (Form 5C) | 7 days of service | r 26 |
| Directions Hearing before a Judge | 14 days after filing the application | rr 22, 27 |
| Compile, file and serve the Review Book | 14 days after the Directions Hearing | r 29 |
| Pre-Hearing Conference before a Judge | 21 days from the Directions Hearing | r 33 |
| Hearing date fixed and notified (Form 5D) | At the Pre-Hearing Conference | rr 34(h), 35 |
Order 5 Rule 37
Where a party has not done any act required to be done by or under the rules of this division, or otherwise has not prosecuted his or her application for leave or application for review with due diligence, or has failed to comply with a direction or order of the Court or a Judge, the Court or a Judge may, on its or his own motion or on application by a party, at any stage of the proceeding —
(a) order that the application for leave or application for review be dismissed where the defaulting party is the applicant; or
(b) where the defaulting party is the respondent, set down the application for leave or application for review for an expedited hearing; or
(c) fix a time peremptorily for the doing of an act under these Rules and may make such orders as it deems just.
A defaulting respondent does not merely risk costs: the review can be set down for an expedited hearing. That reflects the policy of the Division — a respondent cannot slow the matter down by not complying.
And note that the Court may act on its own motion, and at any stage. No application by the other side is needed.
What this means in practice
1. Fix the 14-day date immediately and work backwards. Filing and service must both be complete by then.
2. Order the annexures. Rule 11 requires the affidavit to annex a copy of the election petition and the judgment and order of the National Court. The sealed order may take days to obtain.
3. Arrange the money. The K750 fee and the K5,000 deposit are both payable at filing under Rules 12 and 13. An application without them is not compliant.
4. Identify the respondents. Rule 7 defines them as the Electoral Commission and the party in whose favour a decision is made, and Rule 15 requires personal service unless a Judge permits another manner.
5. Start the draft Index. It must be filed with the application for review under Rule 20(b), only 14 days after leave.
Order 5 Rule 39
The Court or a Judge may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance occurs, unless it is a requirement of the Organic Law.
This is the general dispensing power in the Supreme Court Rules, and it sits in Order 5. Note the exception: it cannot relieve against a requirement of the Organic Law on National and Local-level Government Elections.
Whether it can be used to relieve against Rules 14 and 18 after the period has expired is a different question, and an applicant should not rely on it. The rules themselves prescribe how the periods may be extended, and they require the application to be made inside the period.
Order 5 Rule 40
The Court may make such orders as to costs as it deems just.
The K5,000 deposited in the Registrar’s Trust Account under Rule 13 as security for costs is available against any order made. See election petition reviews.
Sources
- Supreme Court Rules 2012 — O 5 rr 13–40; O 7 rr 6, 11, 13
- Supreme Court Act (Chapter 37) — s 17
- Organic Law on National and Local-level Government Elections — Part XVIII
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.