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Court of AppealDismissedNot stated in the judgment (Notice of Motion dated 17th April, 2019)· [2021] KECA 371 (KLR)

Nyoro Construction Co Ltd v Attorney General [2021] KECA 371 (KLR)

Court of Appeal
23 July 2021
JMJ. Mohammed
1,232 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to give a construction company more time to appeal because it couldn't explain a five-month delay, blaming one director's illness.

What this practically means

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Executive summary

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Nyoro Construction Co. Ltd, a limited liability company, applied under Rule 4 of the Court of Appeal Rules for extension of time to file a notice of appeal and record of appeal against a ruling of the High Court (G.L. Nzioka, J.) delivered on 23rd November 2018, and sought that the costs of the application abide the outcome of the intended appeal. The respondent, the Hon. Attorney General, opposed, arguing that the cause of action arose 18 years earlier, that the indisposition of one director (Mr. Josiah Njuguna) could not explain the delay of a multi-director company, that no evidence of illness was adduced, that no draft memorandum of appeal was annexed to show an arguable appeal, and that the respondent would be prejudiced. The single judge (J. Mohammed, JA) restated the Rule 4 discretion as guided by the Leo Sila Mutiso factors: length of delay, reason for delay, possible chances of success, and prejudice to the respondent. The court held there is no maximum or minimum period of delay, but the delay must be plausibly and satisfactorily explained. It found that the illness of one director was not a plausible explanation for a corporate applicant, that filing a notice of appeal is a simple and mechanical task, and that the applicant failed to demonstrate the Mutiso parameters. The court was careful not to determine the merits of the intended appeal with finality, per Athuman Nusura Juma. The Notice of Motion dated 17th April 2019 was dismissed with costs.

Key legal issues

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Whether the applicant deserved an extension of time to file a notice of appeal and record of appeal under Rule 4 of the Court of Appeal Rules.

Holding

The application failed because the applicant did not sufficiently explain the delay; the illness of a single director of a limited liability company was not a plausible explanation.

Reasoning

The court restated the Leo Sila Mutiso principles: length of delay, reason for delay, possible chances of success, and prejudice to the respondent. The ruling was delivered on 23rd November 2018 but the application was only filed on 18th April 2019, and no notice of appeal had been filed. Because the applicant is a company with more than one director, one director's indisposition could not explain the failure to instruct counsel. Filing a notice of appeal is a simple, mechanical task, and the unexplained delay militated against the overriding objective.

p. 2

Legal principles established

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  • Extension of time under Rule 4 is discretionary and guided by the length of the delay, the reason for the delay, the (possible) chances of the appeal succeeding, and the degree of prejudice to the respondent.
  • The law sets no minimum or maximum period of delay, but the delay must be satisfactorily and plausibly explained.
  • In a limited liability company, the indisposition of one director is not a plausible reason for delay in filing a notice of appeal and record of appeal.
  • In assessing the chances of the intended appeal succeeding, the court must not delve into the merits with finality, the consideration being prefixed by the word 'possibly'.

Court orders

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  1. 1.The Notice of Motion dated 17th April, 2019 is dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75

Cases cited (4)

  • Leo Sila Mutiso v Rose Wangari Mwangi
    Civil Appeal No. Nai. 255 of 1997
  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    [2018] eKLR
  • Bi-Mach Engineers Limited v James Kahoro Mwangi
    [2011] eKLR
  • Athuman Nusura Juma v Afwa Mohamed Ramadhan
    [2016] eKLR
On appeal from
High Court
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time by a single judge)

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, "Nyoro Construction Co Ltd v Attorney General [2021] KECA 371 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 17th April, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/371/eng@2021-07-23

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