Eastlands Theatre Limited, James Samuel Kinyanjui & Anne Njeri Kinyanjui v Kenya National Capital Corporation Limited (Civil Application 84 of 2015) (Civ) [2016] KECA 231 (KLR)
The bottom line
#Kenya's Court of Appeal excused a nearly seven-year appeal delay, blaming the High Court registry and holding the Registrar—not the appellant—responsible for a defective certificate of delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the record of appeal was inordinate and attributable to the applicants
The delay was not inordinate nor blamable on the applicants, given that the High Court took over five years to prepare proceedings despite reminders, and further delay flowed from a defective certificate of delay later corrected.
The court noted the notice of appeal was filed timeously and proceedings were requested promptly. The High Court took more than five years to notify the parties that proceedings were ready, which the court criticised as inefficient. The further delay arose from the defective certificate of delay, responsibility for which lies with the Registrar under the Rules. The applicants' conduct was not slothful or indifferent, so the delay was excused.
Responsibility for a defective certificate of delay
The Registrar of the court below bears responsibility for the certificate of delay, including its defects; a suggestion that defects should be attributed to the applicant's advocate was rejected.
The respondent argued that by practice the certificate is drafted by the advocate and thus its defects were the applicants' fault. The court held that the Rules place the onus of preparation on the Registrar, who signs and issues the document, and followed prior decisions of the Court of Appeal placing responsibility on the Registrar.
Prejudice to the respondent if extension is granted
Any prejudice to the respondent was greatly lessened because the decretal sum had been secured by a consent filed between the parties.
In assessing prejudice alongside the chances of the intended appeal, the court accepted the applicants' advocate's sworn statement that a consent securing the decretal sum had been filed. Keeping the litigation open through an appeal therefore caused little prejudice, and imposing narrow timeliness would only conduce to a speedier conclusion.
Legal principles established
#- Responsibility for the preparation, signing and contents of the certificate of delay rests on the Registrar of the court below, not on the appellant's advocate.
- The discretion to extend time under Rule 4 is wide and unfettered, exercised to do justice between parties on the peculiar facts of each case, having regard among other things to the length of and explanation for the delay and the prejudice to the respondent.
Court orders
#- 1.Time is extended for the applicants to file and serve the record of appeal
- 2.The applicants shall file and serve the record of appeal within thirty (30) days of the date of the ruling
- 3.Costs shall be in the intended appeal
- On appeal from
- High Court of Kenya at Nairobi (Milimani)
- H.C.C. No. 4640 of 1988
- Jurisdiction invoked
- Rule 4 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.
- Biwott & 2 others (Suing as the Official of Chepnyaliliet Self Help Group) v Shunkur & another (Environment and Land Case E012 of 2025) [2026] KEELC 5169 (KLR)[2026] KEELC 5169 (KLR)6 Aug 2026applied
Cite this brief
#Cite this brief
Caselaw, "Eastlands Theatre Limited, James Samuel Kinyanjui & Anne Njeri Kinyanjui v Kenya National Capital Corporation Limited (Civil Application 84 of 2015) (Civ) [2016] KECA 231 (KLR)", Case Analysis (2016). Nairobi Milimani H.C.C. No. 4640 of 1988 (appeal therefrom; motion dated 26th March 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/231/eng@2016-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.