Kayser Investments Limited v West African Foodstuffs Co. Ltd & 2 others
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the application for extension of time was explained
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.
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.
Whether the intended appeal was still live
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.
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.
Legal principles established
#- 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
#- 1.The application for extension of time is dismissed with costs to the respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.