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Case Brief · caselaw.co.ke
Supreme CourtAllowedPetition 22 of 2018

Base Titanium Limited v County Government of Mombasa & another

Supreme Court of Kenya
17 December 2019
708 words in judgment
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The bottom line

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Court allowed late filing due to opponent's lawyer change, applying established extension principles.

What this practically means

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The Supreme Court allowed an applicant to file a supplementary appeal record 48 days late. The delay happened because the other side changed lawyers, making it hard to agree on the court order. The court found this explanation reasonable and gave 14 more days to file. This shows that delays caused by an opponent's actions can be excused.

Executive summary

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This was an application by Desterio Oyatsi, the applicant, seeking enlargement of time to file a Supplementary Record of Appeal out of time in an appeal against a judgment of the Court of Appeal delivered on 15th July 2018 in Civil Appeal No. 69 of 2017. The applicant explained that the delay of forty-eight days in filing the supplementary record was caused by the 1st respondent's change of advocates. The applicant had sent a draft order to the 1st respondent's previous advocates for approval, but they failed to respond. The new advocates only filed a notice of change two days before the expiry of the 15-day period for filing a supplementary record without leave, making it impossible to agree on and extract the order in time. The 2nd respondent did not respond or appear despite service. The Supreme Court, by a unanimous decision, found the explanation satisfactory and allowed the application, applying the principles on extension of time established in Nicholas Kiptoo Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others and Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others. The court ordered the applicant to file the supplementary record within 14 days and ordered costs to be in the cause.

Questions the Court framed

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

  1. 1.whether on the basis of the supporting written submissions of the 1st Respondent, the Applicant herein, has made a compelling case for this Court to exercise discretion in its favour and thereby grant the orders sought

Key legal issues

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01

Whether the applicant has made a compelling case for enlargement of time to file a Supplementary Record of Appeal out of time.

Holding

The application is allowed; the delay of forty-eight days was adequately explained by the applicant's inability to obtain approval of the draft order due to the 1st respondent's change of advocates.

Reasoning

The Court considered the applicant's explanation that the delay in extracting the formal order from the Court of Appeal was caused by the 1st respondent's change of advocates, which occurred after the notice of appeal was filed. The applicant sent a draft order to the previous advocates, who failed to respond, and the new advocates only filed a notice of change two days before the 15-day period for filing a supplementary record without leave expired. The Court found this explanation satisfactory and exercised its discretion to allow the application, applying the principles from Nicholas Kiptoo Korir Salat and Hassan Nyanje Charo.

Legal principles established

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  • Extension of time requires a satisfactory explanation for the delay.
  • A delay caused by the opposing party's change of advocates can be a valid reason.
  • The court considers the length of delay and any prejudice to the other side.
  • The principles from Nicholas Kiptoo Korir Salat and Hassan Nyanje Charo govern such applications.
  • The applicant must show diligence in pursuing the appeal.
  • Costs may be ordered to follow the outcome of the main case.

Court orders

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  1. 1.The Application dated 28th September, 2018 is hereby allowed.
  2. 2.The applicant shall file its Supplementary Record of Appeal within 14 days from the date hereof.
  3. 3.Costs shall be in the cause.

The bench

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

majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal
Civil Appeal No. 69 of 2017
Jurisdiction invoked
Rules 21(1) and 53 of the Supreme Court Rules, 2012; Sections 21(2) of the Supreme Court Act, 2011

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.

The forty-eight day delay, has been explained to our satisfaction by the Applicant. We are persuaded that, the inability by the Applicant, to obtain the approval of its Draft Order timeously, compounded by the change of advocates by the 1st Respondent, adequately explain the delay in filing the Supplementary Record of Appeal.
p. 3 Extension of time - explanation of delay
The Application dated 28th September, 2018 is hereby allowed.
p. 3 Final orders - application allowed
The applicant shall file its Supplementary Record of Appeal within 14 days from the date hereof.
p. 3 Final orders - timeline for filing supplementary record
Costs shall be in the cause.
p. 3 Costs order

Key timeline

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2018-07-15
Court of Appeal delivered judgment in Civil Appeal No. 69 of 2017.
2018-09-28
Applicant filed application for extension of time to file Supplementary Record of Appeal.
2018 (later)
Supreme Court allowed the application, granting 14 days to file.

Practical implications

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For lawyers

Use opponent's lawyer change as delay excuse

When your opponent changes advocates, document the difficulty in obtaining consent on draft orders. This case shows the court accepts such delays as reasonable. File your extension application promptly and explain the sequence of events clearly to strengthen your case.

For businesses

Monitor legal timelines despite opponent changes

If you are involved in an appeal, be aware that your opponent's change of lawyers can affect deadlines. You may need to seek court permission if you miss a filing deadline due to their actions. Keep records of all communications to show the delay was not your fault.

For individuals

Late filing possible if opponent causes delay

If you miss a court deadline because the other side changed lawyers and you couldn't get their approval on documents, you can ask the court for more time. Explain the situation clearly. The court may grant an extension if your reason is genuine and you act quickly.

Frequently asked questions

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What is extension of time in Kenya Supreme Court?+

Extension of time allows a party to file a document after the deadline has passed. The court grants it if there is a good reason for the delay, such as the opponent changing lawyers. You must apply promptly and explain why you were late.

How to file a supplementary record of appeal late in Kenya?+

You need to file an application for enlargement of time at the Supreme Court. Explain the reason for the delay, like the opponent's change of advocates. The court will decide based on principles from cases like Nicholas Kiptoo Korir Salat. If granted, you get a new deadline.

Can opponent's change of lawyers delay my appeal in Kenya?+

Yes. If the opponent changes lawyers, it can slow down agreeing on court orders. The Supreme Court accepted this as a valid reason for a 48-day delay. You should document the change and show you tried to get approval from the old and new lawyers.

What are the principles for extension of time in Kenya?+

The key principles come from Nicholas Kiptoo Korir Salat and Hassan Nyanje Charo cases. They require a satisfactory explanation for delay, no prejudice to the other side, and that the applicant acts diligently. The court has discretion to grant or refuse based on the facts.

Later judgments citing this (9)

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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, "Base Titanium Limited v County Government of Mombasa & another", Case Analysis (2019). Petition 22 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/9/eng@2019-12-17

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