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Court of AppealDismissedCivil Application No. E of 2020 (as stated in the application dated 13th July 2020)· [2021] KECA 124 (KLR)

4mb Mining Limited C/o Ministry of Mining, Juba Republic of South Sudan v Union Link Logistics & 3 others

Court of Appeal of Kenya
5 November 2021
SKS. GATEMBU KAIRU
723 words in judgment
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The bottom line

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The Court of Appeal refused 4MB Mining extra time to file its appeal because the company gave no explanation for its delay.

What this practically means

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Executive summary

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This is a ruling by a single Judge of the Court of Appeal at Mombasa (S. Gatembu Kairu, JA) on a notice of motion dated 13th July 2020 by 4MB Mining Limited. The applicant sought enlargement of time to file an application for leave to appeal against a High Court ruling of 14th May 2020 in Mombasa HCCC 30 of 2018, together with leave to appeal, admission of a record of appeal lodged on 10th July 2020, and a stay of taxation proceedings. The single Judge confined himself to the extension-of-time prayer, the remaining prayers being reserved for the full Court under Rule 53 of the Court of Appeal Rules. The application was brought under Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b), 4, 31, 39 and 42 of the Court of Appeal Rules. Applying the guidelines in Leo Sila Mutiso v Rose Hellen Wangari Mwangi and the Supreme Court's principles in Nicholas Kiptoo Arap Korir Salat v IEBC, the Judge found that leave should have been sought within 14 days, by 28th May 2020, but the application was not filed until 16th July 2020, and no explanation for the delay was offered. The applicant's own assertion that leave was strictly speaking unnecessary meant, in the Judge's view, that the Court had been engaged in vain. The extension of time was accordingly declined, with no orders as to costs. The decision below was not disturbed; this ruling simply refused the procedural indulgence sought.

Key legal issues

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01

Extension of time under Rule 4 of the Court of Appeal Rules

Holding

The application was refused because no explanation was given for the delay in filing the leave application, which was filed well outside the 14-day period prescribed by Rule 39

Reasoning

The decision sought to be appealed was delivered on 14th May 2020, so the leave application was due by 28th May 2020 but was not filed until 16th July 2020. Applying the Mutiso factors and the Salat principles, the court found the only explanation offered did not account for the delay. It also noted the applicant's own statement that leave was strictly unnecessary, rendering the Court's engagement in vain.

p. 2

Legal principles established

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  • A single Judge of the Court of Appeal may only deal with an application for extension of time; other prayers such as leave to appeal and admission of the record are for the full Court under Rule 53
  • Extension of time is an equitable remedy, not a right, and the applicant must explain the delay to the satisfaction of the court
  • Where no explanation for the delay is offered, the court will not exercise its discretion to extend time

Court orders

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  1. 1.The request for extension of time in prayer 1 of the application dated 13th July 2020 is declined
  2. 2.No orders as to costs

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3, 3A and 3B
  • Court of Appeal RulesRules 4, 5(2)(b), 31, 39, 42 and 53

Cases cited (3)

  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    Civil Application No. Nai 255 of 1997 (1999) 2 EA 23
  • Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others
    Supreme Court Application No. 16 of 2014 [2014] eKLR
  • Wakaba Ndegwa & another vs. Lucy Nyaguthii
    [2017] eKLR
On appeal from
High Court
Mombasa HCCC 30 of 2018
Jurisdiction invoked
Sections 3, 3A and 3B of the Appellate Jurisdiction Act; Rules 4 and 53 of the Court of Appeal Rules (single Judge jurisdiction)

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, "4mb Mining Limited C/o Ministry of Mining, Juba Republic of South Sudan v Union Link Logistics & 3 others", Case Analysis (2021). Civil Application No. E of 2020 (as stated in the application dated 13th July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/124/eng@2021-11-05

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