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Court of AppealDismissedCivil Application (Nai)· [2020] KECA 615 (KLR)

Astonfield Solesa Solar Kenya Limited/ Clearwater Industries Limited v Kenya Power & Lighting Co. Limited & 2 others [2020] KECA 615 (KLR)

Court of Appeal of Kenya
5 June 2020
1,132 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to excuse a five-month filing delay because the company had no certificate of delay or proof of the illness it blamed.

What this practically means

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Executive summary

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This was a single-Judge application under Rule 4 of the Court of Appeal Rules by Astonfield Solesa Kenya Limited/Clearwater Industries Limited seeking extension of time to file a record of appeal, or alternatively that the record filed on 11th October 2019 be deemed duly filed and served, in an intended appeal against a High Court judgment delivered on 11th March 2019 in a procurement dispute with Kenya Power & Lighting Company Limited. The applicant's advocate attributed a delay of thirty-four days (in fact about five months from the statutory deadline) to bereavement and illness. Okwengu JA applied the settled Rule 4 factors from Leo Sila Mutiso as restated in Thuita Mwangi, emphasising that the discretion is unfettered but must be exercised judicially. The Court held that although the applicant's letter of 18th March 2019 requesting proceedings was copied to the respondent, engaging the proviso to Rule 82, no certificate of delay was exhibited, so the excludable period could not be established and the record ought to have been filed by 17th May 2019. The explanation of bereavement and illness was unsupported by documentary evidence of illness. The delay was therefore inordinate and unexplained, and the motion was dismissed with costs to the first respondent. The second respondent took no position.

Key legal issues

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01

Applicable principles on a single Judge's discretion under Rule 4 for extension of time

Holding

The Court reiterated the established factors: length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent, while stressing that the list is not exhaustive and the discretion is unfettered so long as exercised judicially.

Reasoning

Relying on Leo Sila Mutiso v Rose Hellen Wangari Mwangi as restated in Thuita Mwangi v Kenya Airways, the Court confirmed that Rule 4 confers an unfettered discretion on the single Judge. The four listed considerations are general guidelines, not an exhaustive catalogue, and a Judge may consider any other relevant factor provided the discretion is exercised judicially.

p. 2
02

Whether the delay of about five months in filing the record of appeal was excusable

Holding

The delay was inordinate and the explanation of bereavement and illness, unsupported by documentary evidence and unsupported by a certificate of delay, did not constitute sufficient cause.

Reasoning

Judgment was delivered on 11th March 2019 and the record ought to have been filed by 17th May 2019 but was filed on 11th October 2019. Although the applicant's letter of 18th March 2019 copied to the respondent invoked the proviso to Rule 82, no certificate of delay was exhibited to establish the excludable period. The bare affidavit claim of bereavement and illness, without documentary proof of illness, could not justify the inordinate delay.

p. 2

Legal principles established

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  • In an application under Rule 4 for extension of time, a party seeking the benefit of the proviso to Rule 82 excluding the time taken to prepare certified proceedings must exhibit a certificate of delay; absent one, the full period counts against the applicant.
  • A claim of advocate's illness or bereavement as the reason for delay should, at the very least, be supported by documentary evidence.

Court orders

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  1. 1.The applicant's motion is dismissed
  2. 2.Costs of the motion to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 82 (proviso)

Cases cited (2)

  • Thuita Mwangi vs Kenya Airways Ltd
    [2003] eKLR
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No Nai 255 of 1997 (unreported)
On appeal from
High Court
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Astonfield Solesa Solar Kenya Limited/ Clearwater Industries Limited v Kenya Power & Lighting Co. Limited & 2 others [2020] KECA 615 (KLR)", Case Analysis (2020). Civil Application (Nai). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/615/eng@2020-06-05

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