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Court of AppealDismissedCivil Appeal (Application) E524 of 2021· [2022] KECA 418 (KLR)

Kayser Investments Limited v West African Foodstuffs Co. Ltd & 2 others

Court of Appeal
4 March 2022
593 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi (D. K. Musinga, JA) on a Notice of Motion dated 16th December 2021 by Kayser Investments Limited seeking extension of time to file the memorandum and record of appeal against a ruling of Ong'undi, J. delivered on 30th June 2021 in ELC Cause No. E001 of 2021, and that the record lodged on 9th September 2021 be deemed properly filed. Counsel for the applicant attributed the delay to illness: she tested positive for Covid-19, was hospitalised, and this disrupted her office, with hospitalisation documents attached. The respondents, through their advocate Christine Oraro, opposed, pointing out that the ruling of 30th June 2021 merely dismissed the applicant's preliminary objection and directed transfer of the matter to the Environment and Land Division; that the pending application was thereafter heard and determined by Oguttu Mboya, J. on 10th November 2021; and that no explanation existed for the delay in filing the extension application itself on 21st December 2021. Applying the settled rule 4 principles from Leo Sila Mutiso v Hellen Wangari Mwangi, the court held that every delay must be explained by the party at fault. While counsel's illness explained the delay up to 9th September 2021, nothing explained the further delay to 21st December 2021. More importantly, the intended appeal had been overtaken by events, the substantive application having been determined on 10th November 2021, a fact not disclosed by the applicant's counsel. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the delay in filing the application for extension of time was explained

Holding

No. The illness of counsel explained the delay in lodging the record of appeal, but there was no explanation for the delay between 9th September 2021 and 21st December 2021 when the application was filed.

Reasoning

The court accepted that counsel's Covid-19 illness and hospitalisation explained the delay up to lodging the record on 9th September 2021. However, counsel was discharged on 2nd August 2021 and advised to isolate for 7 days; assuming she returned to office by mid-August 2021, no cause was shown for the further delay until 21st December 2021. Under rule 4, every period of delay must be explained by the party at fault.

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02

Whether the intended appeal was still live

Holding

No. The intended appeal was overtaken by events because the substantive application had been heard and determined on 10th November 2021, a fact not disclosed by the applicant's counsel.

Reasoning

The respondents showed that the ruling of 30th June 2021 merely dismissed the applicant's preliminary objection and directed transfer to the Environment and Land Division; the pending application was thereafter heard and determined by Oguttu Mboya, J. on 10th November 2021. The applicant's counsel did not disclose this, which weighed against the exercise of discretion in the applicant's favour.

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Legal principles established

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  • Under rule 4 of the Court of Appeal Rules, every delay must be explained by the party at fault before the discretion to extend time can be exercised
  • An intended appeal that has been overtaken by events cannot support an extension of time

Court orders

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  1. 1.The application for extension of time is dismissed with costs to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (2)

  • Leo Sila Mutiso v Hellen Wangari Mwangi
    [1999] 2 EA 231

    Settled guidelines for determination of an application under rule 4 for extension of time

  • Joel Tirop Busienei v David Randichi
    [2016] eKLR

    Every delay must be explained by the party at fault before discretion under rule 4 is exercised

On appeal from
High Court of Kenya at Nairobi, Civil Appeals Division
E.L.C Cause No. E001 of 2021 (Formerly HCCA No. E030 of 2021)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time 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, "Kayser Investments Limited v West African Foodstuffs Co. Ltd & 2 others", Case Analysis (2022). Civil Appeal (Application) E524 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/418/eng@2022-03-04

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