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Court of AppealAllowedMotion dated 28th June 2021 (arising from HCOMMARB/E002/2020)· [2021] KECA 108 (KLR)

National Water Conservation & Pipeline Corporation v Runji & Partners Consulting Engineers Planners Limited (Civil Application E226 of 2021) [2021] KECA 108 (KLR)

Court of Appeal of Kenya
22 October 2021
1,222 words in judgment
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The bottom line

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Kenya's Court of Appeal extended time for a state corporation to serve its appeal papers, ruling that a wrong email address explained a delay of over two months.

What this practically means

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Executive summary

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This is a ruling of a Single Judge of the Court of Appeal (F. Sicha, JA) delivered at Nairobi on 22nd October 2021 on a motion dated 28th June 2021 by National Water Conservation and Pipeline Corporation. The applicant sought extension of time to serve a Notice of Appeal and letter bespeaking proceedings challenging a High Court ruling by Mativo J delivered on 22nd February 2021 in HCOMMARB/E002/2020, which had dealt with an application to set aside an arbitral award of Tom Onyango published on 10th August 2020. The application was brought under Articles 48, 50, 159 and 259 of the Constitution, Sections 3A and 3B of the Appellate Jurisdiction Act, and Rules 4, 77 and 82 of the Court of Appeal Rules 2010. The applicant explained that its advocates had served the documents on a wrong yahoo.com email address, honestly believing it to be the respondent's address, amid difficulties with the new judiciary e-filing portal. The respondent opposed, noting it had earlier clarified its correct email address. Applying the settled four-factor test from Leo Sila Mutiso v. Rose Hellen Wangari Mwangi - length of delay, reasons for delay, chances of appeal success, and prejudice to the respondent - the court held that although the delay of 2 months and 16 days was inordinate, it was satisfactorily explained and excusable, and no uncompensatable prejudice was shown. The application was allowed in terms of prayers 2 and 3, with 30 days granted to serve the documents, failing which the orders would stand vacated, and costs of the motion to abide the outcome of the appeal.

Key legal issues

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01

Whether the delay of 2 months and 16 days in serving the Notice of Appeal was excusable

Holding

Although the delay was inordinate, it was satisfactorily explained by the use of a wrong email address for service and was therefore excusable.

Reasoning

The applicant's advocates honestly but mistakenly believed the respondent's email address was a yahoo.com address, whereas the respondent's advocates used a different address. Combined with challenges understanding the nascent judiciary e-filing portal, this explained the delay. The Single Judge weighed the four Leo Sila Mutiso factors: length of delay, reasons for delay, arguability of the appeal (on which he could say little sitting as a Single Judge), and absence of demonstrated prejudice to the respondent.

p. 3
02

Whether the respondent would suffer prejudice if the extension was granted

Holding

No prejudice that could not be compensated by costs was demonstrated.

Reasoning

The respondent merely opposed the application and clarified that its correct email address had earlier been communicated, but did not demonstrate concrete prejudice. The court held that any prejudice could be compensated by costs, and granted the extension subject to a 30-day service window, failing which the orders would lapse.

p. 3

Legal principles established

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  • The Court has a wide but judicious discretion under Rule 4 to extend time, guided by the length of the delay, reasons for the delay, chances of the appeal succeeding, and prejudice to the respondent.

Court orders

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  1. 1.Extension of time for serving the Notice of Appeal dated 4th March 2021 and the letter bespeaking proceedings
  2. 2.The Notice of Appeal dated 4th March 2021 and letter bespeaking proceedings both served on 26th May 2021 deemed properly served
  3. 3.Applicant granted 30 days from the date of the ruling to serve the Notice of Appeal and letter bespeaking proceedings, failing which the orders shall stand vacated
  4. 4.Costs of the motion to abide the outcome of the appeal

Authorities

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Legislation

  • Constitution of Kenya 2010Article 48
  • Constitution of Kenya 2010Article 50
  • Constitution of Kenya 2010Article 159
  • Constitution of Kenya 2010Article 259
  • Appellate Jurisdiction Act CAP 9Section 3A
  • Appellate Jurisdiction Act CAP 9Section 3B
  • Court of Appeal Rules 2010Rule 4
  • Court of Appeal Rules 2010Rule 77
  • Court of Appeal Rules 2010Rule 82

Cases cited (1)

  • Leo Sila Mutiso v. Rose Hellen Wangari Mwangi
    Civil Application No. Nai 251 of 1997
On appeal from
High Court of Kenya
HCOMMARB/E002/2020
Jurisdiction invoked
Articles 48, 50, 159 and 259 of the Constitution; Sections 3A & 3B of the Appellate Jurisdiction Act; Rules 4, 77 and 82 of the Court of Appeal Rules 2010

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, "National Water Conservation & Pipeline Corporation v Runji & Partners Consulting Engineers Planners Limited (Civil Application E226 of 2021) [2021] KECA 108 (KLR)", Case Analysis (2021). Motion dated 28th June 2021 (arising from HCOMMARB/E002/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/108/eng@2021-10-22

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