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Court of AppealDismissedCivil Application 175 of 2020· [2022] KECA 741 (KLR)

Gudka Westend Motors Limited v Industrial & Commercial Development Corporation

Court of Appeal
27 May 2022
FSF Sichale
1,985 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to excuse a two-year delay in filing a cross-appeal, confirming that litigants must actively chase their own court documents.

What this practically means

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Executive summary

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Industrial and Commercial Development Corporation (the applicant, though described in the cause title as respondent to the main appeal) moved the Court of Appeal under Rules 4, 42 and 93 of the Court of Appeal Rules 2010 and Sections 3, 3A, 3B and 7 of the Civil Procedure Act seeking leave to file a Notice of Cross Appeal out of time against the judgment of Majanja J of 28th March 2019 in Kisii HCCC No. 37 'A' of 2008, in which both parties had partially succeeded and failed. Gudka Westend Motors Limited had already filed and served its Notice and Record of Appeal, served on the applicant on 30th July 2020. The applicant blamed its delay on the unavailability of typed proceedings and the Covid-19 pandemic office closures. Sichalet JA, sitting as a single Judge, applied the settled Leo Sila Mutiso principles. The court found the delay of about 2 years and 2 months inordinate: apart from one letter of 8th May 2019, there was no evidence of efforts to obtain proceedings; a diligent party must keep checking with the registry; and Covid-19 measures only began in April 2020, leaving the period from March 2019 unexplained, while the respondent had obtained the same proceedings by 30th July 2020. The Notice of Cross Appeal disclosed no substantial issues of law, and allowing the application when both parties had filed appeal submissions would prejudice the respondent through added costs and delay. The motion was dismissed in its entirety with costs to the respondent.

Key legal issues

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01

Whether the delay in filing the Notice of Cross Appeal was inordinate and excused

Holding

The delay of about 2 years and 2 months was inordinate and not satisfactorily explained; Covid-19 could not excuse the period from March 2019 to April 2020

Reasoning

The judgment was delivered in March 2019 but the application was filed in May 2021. Apart from a single letter of 8th May 2019 requesting proceedings, there was no evidence of follow-up. Covid-19 containment measures only began in April 2020, of which the court took judicial notice, and the respondent had obtained the proceedings by 30th July 2020.

p. 4
02

Chances of the intended Cross Appeal succeeding

Holding

The applicant had not raised substantial issues of law on the face of the Notice of Appeal

Reasoning

The single Judge examined the Notice of Appeal and was not satisfied that substantial issues of law were raised, while acknowledging the limits of a single Judge's role on arguability. The court also noted the applicant did not appear at the High Court hearing.

p. 4
03

Prejudice to the parties

Holding

Allowing the application at the tail end of the appeal would occasion the respondent great prejudice

Reasoning

Both parties had already filed submissions in preparation for the hearing of the appeal; allowing a late Cross Appeal would cause additional costs and delay in preparing responses, while the applicant showed no prejudice from refusal.

p. 4

Legal principles established

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  • Extension of time under Rule 4 is a discretionary remedy assessed on the length of delay, reasons for delay, chances of success and prejudice to the respondent
  • A diligent litigant has a duty to follow up with the registry for typed proceedings and cannot blame the court for not notifying it

Court orders

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  1. 1.The applicant's motion dated 7th May 2021 is dismissed in its entirety with costs to the respondent
  2. 2.Leave to file a Notice of Cross Appeal out of time is declined

Authorities

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Legislation

  • Court of Appeal Rules 2010Rule 4
  • Court of Appeal Rules 2010Rule 42
  • Court of Appeal Rules 2010Rule 93
  • Court of Appeal Rules 2010Rule 82(1)
  • Court of Appeal Rules 2010Rule 82(2)
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 3B
  • Civil Procedure ActSection 7

Cases cited (1)

  • Leo Sila Mutiso V. Rose Hellen Wangari Mwangi – Civil Application No. Nai 251 of 1997
    Civil Application No. Nai 251 of 1997

    Sets out the four principles for extension of time: length of delay, reasons, chances of success, and prejudice

On appeal from
High Court
Kisii HCCC No. 37 'A' of 2008
Jurisdiction invoked
Rules 4, 42 and 93 of the Court of Appeal Rules 2010; Sections 3, 3A, 3B and 7 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Gudka Westend Motors Limited v Industrial & Commercial Development Corporation", Case Analysis (2022). Civil Application 175 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/741/eng@2022-05-27

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