Kenya Power & Lightining Co. Limited v Noorlands Limited
The bottom line
#Kenya's Court of Appeal refused to revive an appeal filed over a year late because the lawyer's office gave no explanation for the delay after reopening.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in lodging the appeal was inordinate and excusable
The delay of over 1½ years (excluding the period the ELC took to prepare proceedings) was inordinate because the explanation — the advocates' failure to follow up — did not cover the period after their offices reopened on 14th January, 2019.
The court accepted that time only began running on 6th October, 2018 when the proceedings were ready, so the appeal was due by 6th December, 2018. The advocate-mistake explanation covered the Christmas closure to 14th January, 2019, but there was no evidence of when the advocates or applicant learnt of the failure, or of any steps taken to verify that the appeal had been lodged. Following Tana & Athi Rivers Development Authority v. Jeremiah Kimigho Mwakio, the explanation was unsatisfactory and the delay inordinate.
Arguability of the intended appeal
The court doubted the arguability of the intended appeal without determining its merits.
While acknowledging that an extension application is not the forum to determine the merits, the single judge expressed reservations about whether the intended appeal against the award of Kshs. 2,500,000 general damages for trespass was arguable, which weighed against exercising discretion in the applicant's favour.
Legal principles established
#- In an extension-of-time application the court considers, among other factors, the length of the delay, the reasons for the delay, the degree of prejudice to the respondent, and possibly the chances of success of the intended appeal.
- Under the proviso to Rule 82 of the Court of Appeal Rules, the period taken by the trial court to prepare certified proceedings is excluded when computing the 60-day period for lodging an appeal.
- Although the mistake of an advocate should ordinarily not be visited on a party, an unexplained failure to follow up after the advocate's offices reopened renders the explanation for delay unsatisfactory and the delay inordinate.
Court orders
#- 1.Dismissal of the motion dated 12th August, 2020
- 2.Costs of the motion awarded to the respondent
- On appeal from
- Environment and Land Court
- ELC No. 287 of 2013
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Power & Lightining Co. Limited v Noorlands Limited", Case Analysis (2021). ELC No. 287 of 2013 (appeal therefrom); motion dated 12th August, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/378/eng@2021-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.