Nairobi City County v Salima Enterprises Limited [2020] KECA 610 (KLR)
The bottom line
#The Court of Appeal refused Nairobi City County's request to appeal three years late, ruling that every day of delay must be explained.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of approximately three years in filing the notice of appeal was satisfactorily explained
The delay was inordinate and unexplained; the applicant failed to disclose when it learnt of the ruling and, contrary to its claim of ignorance, actively participated in judicial review proceedings arising from the same judgment
The notice of appeal was due within 14 days of 12th June, 2015 but the motion was lodged on 29th June, 2018. The applicant participated in H.C. Misc. C. No. 309 of 2015 (J.R), filing affidavits in November 2015 and February 2016, showing it was aware of the ruling's outcome. Its failure to disclose the exact date it learnt of the decision was fatal, since that date is crucial to computing the delay. Internal staff failures cannot excuse the delay.
Whether the intended appeal had arguable chances of success
It was doubtful the intended appeal would succeed, given prior litigation establishing the respondent's indefeasible title, the partly settled decretal sum, and a recorded consent to pay the outstanding amount
This Court had, in a 1997 judgment involving the applicant's predecessor, already found the respondent to be the registered proprietor with absolute and indefeasible title. Further, the applicant had paid Kshs. 125,000,000 in January 2018 and recorded a consent on 9th January, 2018 to pay the outstanding Kshs. 600,000,000 within 21 days, in default of which execution would ensue. The mandamus orders had not been set aside, so enlarging time would serve no purpose.
The proper approach of a single Judge to the prospects-of-success criterion in extension of time applications
A single Judge must exercise care and cannot make a final determination of the merits of an intended appeal; only the full Court may do so after hearing the parties
The Court prefixed the prospects-of-success consideration with the word 'possibly' in virtually all its decisions on extension of time, precisely because final merits determination is reserved for the full bench. In Athuman Nusura Juma vs. Afwa Mohamed Ramadhan the Court warned single judges to exercise care on this question.
Whether the applicant was entitled to a stay of execution from a single Judge
The prayer for stay of execution was outside the remit of a single Judge sitting under Rule 5(2)(b) in this application
The motion was taken out under Rules 4 and 5(2)(b) seeking both extension of time and stay of execution, but the Court noted at the outset that the stay prayer was beyond a single judge's remit, and no such order was made in the final disposition.
Legal principles established
#- In an application for extension of time, the whole period of delay must be declared and satisfactorily explained to the Court.
- A single Judge considering an extension of time application may take into account the length of the delay, the reason for the delay, the degree of prejudice and, possibly, the chances of the appeal succeeding.
- A single Judge cannot definitively determine the merits of an intended appeal; that is for the full Court, which is why the prospects-of-success factor is prefixed with the word 'possibly'.
Court orders
#- 1.The application fails and is dismissed
- 2.No orders as to costs
- On appeal from
- High Court of Kenya (Environment and Land Court, Nairobi)
- Nairobi HC ELC 1144 of 2013, Salima Enterprises Limited vs. Nairobi City County (and related ruling in H.C. Misc. C. No. 309 of 2015 (J.R))
- Jurisdiction invoked
- Rule 4 and Rule 5(2)(b) of the Court of Appeal Rules (single Judge's discretionary power to extend time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nairobi City County v Salima Enterprises Limited [2020] KECA 610 (KLR)", Case Analysis (2020). Civil Application No. Nai. 000 of 2018 (as inferred from the motion under Rules 4 and 5(2)(b) of the Court of Appeal Rules) - not expressly stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/610/eng@2020-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.