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Court of AppealPartially AllowedCivil Application E047 of 2022· [2022] KECA 872 (KLR)

Associated Construction Company (K) Ltd v Kyamu Construction & Engineering Ltd

Court of Appeal
22 July 2022
KMK M'Inoti
1,970 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 on a motion by Associated Construction Company (K) Ltd seeking, in one omnibus application, extension of time to file a notice of appeal and stay of execution of the High Court at Machakos judgment (Kemei, J, December 1, 2020) which set aside trial-court stay and settlement orders. M'Inoti, JA deprecated the growing practice of omnibus applications, noting that extension of time is the remit of a single judge while stay of execution is for the full court, and treated the application as solely for extension of time in deference to Article 159(2)(d). The applicant's notice of appeal had been filed on December 15, 2020, within the rule 75 period, but erroneously in the Court of Appeal registry instead of the High Court, so no case number was generated. Accepting this as an innocent mistake during the early days of e-filing, and weighing the fourteen-month delay, the absence of fraud or intent to overreach, the applicant's claim it was never heard in the initial proceedings and risk of paying twice, the judge allowed the motion, directing the applicant to file and serve its notice of appeal within fourteen days, with costs of the application to abide the outcome of the intended appeal. The stay of execution component was not determined, being outside the single judge's remit.

Key legal issues

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01

Whether the applicant's delay of fourteen months was adequately explained

Holding

The delay was explained: the notice of appeal was filed on time but in the wrong court due to innocent mistake during the nascent days of e-filing, and the applicant was given the benefit of doubt.

Reasoning

The e-filing dashboard showed a notice filed on December 15, 2020 seeking to appeal Kemei J's judgment, but filed in the Court of Appeal rather than the High Court as rule 75(1) required, so no case number was generated. Given the early days of judicial technology deployment, the court accepted the explanation of innocent mistake.

p. 3
02

Whether the intended appeal was frivolous

Holding

The intended appeal was not prima facie frivolous; the applicant contended it was never heard in the initial proceedings and stood to pay twice.

Reasoning

Weighing the respondent's judgment against the applicant's undoubted right of appeal, the court found both parties faced some prejudice, but the applicant's claims of not being heard and of double payment meant the appeal was not a mere frivolity, favouring determination on the merits.

p. 3

Legal principles established

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  • Omnibus applications combining extension of time and stay of execution are improper; extension of time is for a single judge while stay of execution is for the full court.
  • Since the 1985 amendment, rule 4 no longer requires an applicant to show sufficient reason for extension of time.
  • The discretion to extend time is wide but must be exercised judiciously, guided by the length of and reason for delay, prejudice, conduct of parties, the right of appeal and whether the appeal is prima facie frivolous.

Court orders

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  1. 1.The motion dated February 17, 2022 is allowed
  2. 2.The applicant is directed to file and serve its notice of appeal within fourteen days from the date of the ruling
  3. 3.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 75(1)

Cases cited (7)

  • Abdulrazak Rageh Haji v. Mahadho Abdulrazak Adichare
    CA No. E030 of 2020

    Decrying omnibus applications combining extension of time and stay of execution

  • Riccardo Fannelli & 2 Others v. Frigrieri Graziano
    Civil Application No. 51 of 2015

    Example of deprecation of omnibus applications

  • Christopher Iddi Moto & 15 Others v. Chiriba Nyambu Barua
    Civil Application No 43 of 2014

    Example of deprecation of omnibus applications

  • County Government of Mombasa v. Kooba Kenya Ltd
    [2019] eKLR

    Cited by respondent for the proposition that sufficient reason must be given for delay

  • Abdul Azizi Ngoma v. Mungai Mathayo
    [1976] KLR 61

    Source of the 'sufficient reason' requirement later removed by the 1985 amendment to rule 4

  • Imperial Bank Ltd (In Receivership) & Another v. Alnashir Popat & 18 Others
    [2018] eKLR

    Legislative history of rule 4 and current considerations for extension of time

  • Tononoka Steels Ltd v. The PTA Bank
    CA No. 295 of 1998

    Per Lakha, JA: court should prefer determining cases on merits absent fraud, overreach or inordinate delay

On appeal from
High Court of Kenya at Machakos
HCCA No. 87 of 2018
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (single judge jurisdiction to extend time), in deference to Article 159(2)(d) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Associated Construction Company (K) Ltd v Kyamu Construction & Engineering Ltd", Case Analysis (2022). Civil Application E047 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/872/eng@2022-07-22

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