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Court of AppealPartially AllowedCivil Appeal (Application) 134 of 2018· [2022] KECA 569 (KLR)

Kenya Ports Authority v Munyao & 4 others

Court of Appeal
10 June 2022
SKS. G. Kairu
1,063 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a four-day late appeal filing, confirming that short, explained delays without prejudice will usually be forgiven.

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 Mombasa (SG Kairu, JA) on the respondents' application dated 26th July 2019 seeking to have their notice of appeal deemed filed within time, or alternatively leave to file it out of time, in order to challenge the Court of Appeal's judgment of 11th July 2019 (Visram, Karanja & Koome, JJ.A) before the Supreme Court. The notice, due by 25th July 2019 under Rule 36 of the Supreme Court Rules, was filed on 29th July 2019. The appellant opposed, arguing no valid grounds and no matters of general public importance. The judge applied the settled Rule 4 principles from Fakir Mohamed v Joseph Mugambi and the Supreme Court's decision in Nicholas Kiptoo Arap Korir Salat v IEBC, and the recent Mount Kenya Bottlers ruling. Finding the four-day delay not inordinate, a plausible explanation offered (time lost obtaining the judgment and instructions), and no evident prejudice to the appellant, the court exercised its discretion in the applicants' favour. The application was allowed in terms of prayer 3: the applicants to file and serve the notice of appeal within 14 days, or, if already filed on 29th July 2019, it was admitted out of time. No orders as to costs were made. The decision below was not disturbed; this ruling concerns only access to the Supreme Court.

Key legal issues

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01

Whether the delay of about 4 days in filing the notice of appeal was inordinate and excusable

Holding

The delay was not inordinate; a plausible explanation was offered (obtaining the judgment and instructions), no prejudice to the appellant was evident, and the discretion was exercised in the applicants' favour

Reasoning

The court applied the Fakir Mohamed and Salat principles: length and reason for delay, prejudice, and public interest. The notice was due by 25th July 2019 and filed 29th July 2019; the short delay was explained and the appellant would suffer no evident prejudice, warranting enlargement of time.

p. 2

Legal principles established

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  • Extension of time is an equitable remedy at the court's discretion, granted on a case-by-case basis to a deserving party who explains the delay and absence of prejudice
  • The Rule 4 extension-of-time discretion is unfettered and considers delay, reasons, appeal chances, prejudice, public administration, compliance with time limits, resources and public interest

Court orders

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  1. 1.The application is allowed in terms of prayer 3
  2. 2.The applicants shall file and serve the notice of appeal within 14 days of delivery of the ruling
  3. 3.If the applicants have already filed and served the notice of appeal on 29th July 2019, the same is admitted out of time
  4. 4.No orders as to costs

Authorities

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Legislation

  • Supreme Court RulesRule 36
  • Court of Appeal RulesRule 4

Cases cited (7)

  • Fakir Mohamed vs. Joseph Mugambi & 2 others
    [2005] eKLR

    Summary of principles governing extension of time under Rule 4

  • Mutiso vs. Mwangi
    Civil Appl. NAI. 255 of 1997 (UR)

    Relevant factors in extension of time

  • Mwangi vs. Kenya Airways Ltd
    [2003] KLR 486

    Relevant factors in extension of time

  • Major Joseph Mwereri Igweta vs. Murika M’Ethare & Attorney General
    Civil Appl. NAI. 8/2000 (UR)

    Relevant factors in extension of time

  • Murai v Wainaina (No 4)
    [1982] KLR 38

    Relevant factors in extension of time

  • Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others
    Supreme Court Application No. 16 of 2014 [2014] eKLR

    Extension of time is an equitable discretion; burden on applicant; delay must be explained; prejudice and public interest

  • Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others
    (Application 12 (E021) of 2021) [2022] KESC 3 (KLR)

    Recent restatement of extension-of-time principles

On appeal from
Court of Appeal at Mombasa
Civil Appeal No. 134 of 2018
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time discretion); application for leave to file notice of appeal out of time to reach the Supreme Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Ports Authority v Munyao & 4 others", Case Analysis (2022). Civil Appeal (Application) 134 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/569/eng@2022-06-10

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