Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application 165 of 2022· [2022] KECA 998 (KLR)

Villa Care Management Limited v Kengen Retirement Benefits Scheme

Court of Appeal
23 September 2022
HOH. A. Omondi
929 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal refused Villa Care's second attempt to revive its late appeal, confirming you cannot patch up a defect a judge has already ruled on.

What this practically means

#

Executive summary

#
This is a single-judge ruling of the Court of Appeal (H. A. Omondi, JA) on a motion dated May 16, 2022 by Villa Care Management Limited seeking extension of time to lodge a notice of appeal against a High Court ruling (Okwany, J., 29 July 2021) that dismissed its application to set aside an arbitral award of 20 May 2019, together with deeming orders and a stay of proceedings in the enforcement application pending before the High Court. The applicant explained the delay by the bereavement of its previous counsel and the transfer of the file, and noted that an earlier extension application dated September 4, 2021 had been rendered 'dead on arrival' by a ruling of Laibuta, JA in April 2022 for want of a notice of appeal. The respondent opposed, arguing the delay of some ten months was inordinate and the matter was an attempt to re-argue issues already determined. The court held that computation of delay must rest on the critical dates rather than the ultimate hearing date, and that since this Court had already heard and determined the earlier application, any attempt to ameliorate the situation was tantamount to patching up the lapse that had informed the Judge's decision. The application was dismissed with costs to the respondent. The intended appeal against the setting-aside ruling therefore does not proceed, and the enforcement proceedings continue unaffected.

Key legal issues

#
01

Whether the delay in lodging the notice of appeal should be excused

Holding

The delay was not excused; the history of the matter, including the prior ruling for want of a notice of appeal, did not predispose the court to exercise its discretion favourably.

Reasoning

The court traced the critical dates: award of 20 May 2019, set-aside application of 14 August 2019, dismissal ruling of 29 July 2021, and the extension application of 4 September 2021 filed within a month. Obstacles including counsel's bereavement delayed its progress, but the April 2022 ruling by Laibuta, JA found the application dead for want of a notice of appeal, and a fresh motion could not cure that defect.

p. 2
02

Computation of the period of delay

Holding

Computation should not focus only on the ultimate hearing date of the application but on the critical dates in the sequence of filings.

Reasoning

The court held that focusing solely on when the application was finally heard would skew the computation of time; the relevant dates are the award, the set-aside application, the dismissal ruling and the filing of the extension application, which was lodged less than a month after the impugned decision.

p. 2

Legal principles established

#
  • Where a prior ruling of the Court of Appeal has made a determination on an extension application for want of a notice of appeal, a fresh attempt to ameliorate that situation amounts to patching up the lapse that informed the Judge's decision.

Court orders

#
  1. 1.The application dated May 16, 2022 is dismissed
  2. 2.Costs of the application to the respondent

Authorities

#

Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 39(b)
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 43
  • Court of Appeal RulesRule 75(4)
  • Arbitration ActSection 35
  • Constitution of Kenya 2010Article 159

Cases cited (1)

  • Nicholas Kiptoo Arap Korir Salat v IEBC and 7 Others
    [2014] eKLR

    Referenced by the applicant on extension of time where the application was not determined on the merits

On appeal from
High Court of Kenya at Nairobi, Commercial and Admiralty Division
High Court Misc. Application No. 260 of 2019
Jurisdiction invoked
Rules 4, 5(2)(b), 39(b), 42, 43 and 75(4) of the Court of Appeal Rules; Section 35 of the Arbitration Act; Article 159 of the Constitution of Kenya 2010 and the inherent power of the Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Villa Care Management Limited v Kengen Retirement Benefits Scheme", Case Analysis (2022). Civil Application 165 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/998/eng@2022-09-23

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