DHL Exel Suppl Chain Kenya Limited v Tilton Investments Limited [2015] KECA 169 (KLR)
The bottom line
#Kenya's Court of Appeal gave DHL more time to seek permission to appeal an arbitration ruling, confirming courts focus on delay explanations, not case merits, at this stage.
What this practically means
#Executive summary
#Key legal issues
#Scope of the extension-of-time inquiry
The application is decided on delay length, explanation and arguability considerations, not on the merits of the intended application for leave to appeal.
The court distinguished between the present extension-of-time application and the intended application for leave under section 39(3)(b) of the Arbitration Act. Because the applicant was not yet seeking leave, the judge confined himself to the discretionary factors - length of delay, explanation, and effect on the other party - leaving the merits of leave to be argued before the trial court.
Whether the delay of thirty-four days beyond the fourteen-day rule 39 period was inordinate
The eleven days taken to obtain a signed ruling were excused and the remaining delay of approximately twenty-three days was explained and not inordinate.
The applicant filed its notice of appeal within two days of the ruling and promptly requested certified proceedings. Of the forty-eight-day total, eleven days were attributable to obtaining a signed copy of the ruling, leaving twenty-three days explained by consultations and receipt of instructions, which the court found satisfactorily explained and not inordinate, though it censured counsel for attributing delay to consultations.
Access to court on extension-of-time applications
Access to court should not be barred on the basis of an assessment of the merits of the intended case at the extension-of-time stage.
The judge held that it was not his province, at the extension stage, to pre-empt the leave application or deny the applicant access to the court based on his view of the strength of the intended appeal; the respondent would have full opportunity to oppose the leave application before the trial court.
Legal principles established
#- An application for extension of time is discretionary and is determined on the length of delay, the explanation for the delay, and whether the delay is inordinate or excusable.
- On an extension-of-time application the court should not delve into the merits of the intended application for leave or the intended appeal.
Court orders
#- 1.The Notice of Motion dated 7th September 2015 and filed on 9th September 2015 is allowed
- 2.Costs to abide by the outcome of the intended application for leave to appeal
- 3.The application for leave to appeal to be filed within 21 days of the date of the ruling, in default of which the extension of time granted shall automatically lapse
- On appeal from
- High Court of Kenya at Nairobi
- Miscellaneous Civil Application No. 507 of 2014
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rules 4, 39, 42 and 43 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Onindo Onindo & Associates Advocates v Gatatha Farmers Co. Ltd & another [2021] KEELC 3277 (KLR)[2021] KEELC 3277 (KLR)18 May 2021applied
Cite this brief
#Cite this brief
Caselaw, "DHL Exel Suppl Chain Kenya Limited v Tilton Investments Limited [2015] KECA 169 (KLR)", Case Analysis (2015). Civil Application No. NAI 238 of 2015 (UR 197/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/169/eng@2015-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.