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Court of AppealDismissedCivil Application E162 of 2021· [2022] KECA 735 (KLR)

Kalakacha v Mini Bakeries (N) Limited

Court of Appeal
28 April 2022
FTF Tuiyott
1,371 words in judgment
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The bottom line

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The Court of Appeal refused to extend time to file an appeal because the applicant never obtained a certificate of delay or fixed late service of the Notice of Appeal.

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 Kisumu (Tuiyott, JA) on a motion dated 26th November 2021 seeking extension of time to file and serve a Memorandum of Appeal and record of appeal, brought under Rules 1(2) and 4 of the Court of Appeal Rules and Article 159(2) of the Constitution. The applicant, aggrieved by an ELRC judgment at Eldoret (Abuodha Jorum Nelson, J), had filed a Notice of Appeal on 27th May 2020 and timely requested certified proceedings, but the appeal was not instituted within the sixty-day period in Rule 82. He attributed the delay to the registry's inability to trace the court file, with proceedings reportedly ready only on 22nd November 2021. The respondent opposed, noting the Notice of Appeal was served out of time on 9th June 2020, unexplained gaps in the follow-up correspondence, and no proof of when proceedings were released. The court restated the Rule 4 factors - length of delay, reasons, prejudice and chances of success - and held that an applicant relying on delayed proceedings must obtain the registrar's certificate of delay under Rule 82(1) to exclude the preparation time; none was sought. It further noted the late service of the Notice of Appeal was never remedied despite protest by respondent's counsel, possibly rendering the application stillborn. The motion was dismissed with costs. The underlying appeal was not before the court and the High Court decision was not disturbed.

Key legal issues

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01

Discretionary extension of time under Rule 4

Holding

The application fails because the delay is not satisfactorily explained and the applicant did not obtain a certificate of delay.

Reasoning

The court restated the Rule 4 factors: length of delay, reasons, prejudice and chances of success. The applicant blamed the registry for the lost file and delayed proceedings but never sought or obtained the Rule 82(1) certificate of delay, which would have excluded the preparation time from computation. Absent that explanation, the motion lacked merit.

p. 3
02

Late service of the Notice of Appeal

Holding

Service on 9th June 2020 was out of time (deadline 3rd June 2020) and no remedial application was made, possibly rendering the application stillborn.

Reasoning

It was common ground that the Notice of Appeal was served six days late. Counsel for the respondent protested the late service at the date of service, yet the applicant made no application under the proviso to Rule 77 to excuse or regularise the breach, undermining the motion independently of the extension-of-time question.

p. 2

Legal principles established

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  • The Rule 4 power to extend time is discretionary and must be exercised judiciously, guided by length of delay, reasons for delay, prejudice to the respondent and chances of success.
  • An applicant relying on delay in obtaining proceedings must obtain the registrar's certificate of delay contemplated by Rule 82(1) to exclude that time.

Court orders

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  1. 1.The application of 26th November, 2021 is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)
  • Court of Appeal RulesRule 1(2)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 77
  • Court of Appeal RulesRule 82(1) and (2)
  • Court of Appeal RulesRule 115
On appeal from
High Court of Kenya at Eldoret (ELRC)
ELRC Cause No. 89 of 2017
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules and Article 159(2) of the Constitution

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, "Kalakacha v Mini Bakeries (N) Limited", Case Analysis (2022). Civil Application E162 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/735/eng@2022-04-28

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