Zhongmei Engineering (k) Group Limited v Anthony Wachira Wairimu Johnstone Ngari Mwangi (Suing as Legal Representatives and Administrators of the estate of Josphat Kiuri Mwangi)
The bottom line
#Kenya's Court of Appeal refused to excuse an 87-day appeal filing delay, ruling that COVID-19 could not excuse inaction when e-filing was available.
What this practically means
#Executive summary
#Key legal issues
#Factors governing extension of time under Rule 4
The decision is discretionary and guided by the factors in Leo Sila Mutiso v Rose Hellen Wangari Mwangi: length of delay, reason for delay, chances of the appeal succeeding, and degree of prejudice to the respondent
The Rules do not prescribe factors, so the Court applies its settled jurisprudence. The discretion is free and unfettered but must be exercised to achieve a just decision in the circumstances of each case, applying the Mutiso principles as the established framework.
Effect of non-service of the letter bespeaking proceedings
Non-service of the bespeaking letter contrary to Rule 82(2) means the applicant cannot enjoy the benefit of Rule 82(1); the 60-day period runs uninterrupted
The certificate of delay showed 399 days of delay attributable to the registry, but the court held the certificate availed the applicant nothing because the failure to serve the bespeaking letter on the respondent contravened Rule 82(2), following Mistry Premji Ganji, so time ran without interruption from 23rd January 2020.
Whether COVID-19 explained the delay
No; e-filing and e-service directions had been issued by the Chief Justice and the President of the Court of Appeal, so the pandemic did not excuse the failure to file
Although court operations were scaled down, the Chief Justice's Practice Directions on Electronic Case Management of 4th April 2020 and the Court of Appeal President's Practice Notes of 21st April 2020 provided for e-filing, e-payment and e-service, so the applicant could have filed earlier and chose convenience instead.
Legal principles established
#- A plausible and satisfactory explanation for delay is essential to obtaining an extension of time under Rule 4
- Failure to serve the letter bespeaking proceedings on the respondent under Rule 82(2) deprives a party of the benefit of Rule 82(1), so the 60-day period runs uninterrupted
- The COVID-19 pandemic cannot be used as a panacea to cure a party's indolence where e-filing avenues were available
Court orders
#- 1.The application for extension of time to file and serve the Record of Appeal is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- Employment and Labour Relations Court at Chuka
- ELRC Cause No. 102 of 2018
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (inherent extension-of-time jurisdiction of a single Judge of Appeal in chambers)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zhongmei Engineering (k) Group Limited v Anthony Wachira Wairimu Johnstone Ngari Mwangi (Suing as Legal Representatives and Administrators of the estate of Josphat Kiuri Mwangi)", Case Analysis (2020). Civil Application No. 240 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/40/eng@2020-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.