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Court of AppealAllowedCivil Appeal (Application) E111 of 2022· [2022] KECA 1048 (KLR)

Euromec International Limited v Shandong Taikai Power Engineering Co. Ltd

Court of Appeal
23 September 2022
1,441 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal allowed a company extra time to serve its appeal notice, confirming courts will extend deadlines when delays are explained and no one is prejudiced.

What this practically means

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Executive summary

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This is a ruling by W Karanja, JA, sitting as a single judge of the Court of Appeal at Nairobi, on a notice of motion dated April 5, 2022 by Euromec International Limited seeking leave to serve its notice of appeal out of time against a ruling of the High Court (Mativo, J) delivered on September 21, 2021. The applicant filed its notice of appeal timeously on September 28, 2021 but failed to serve it on the respondent within the 7 days required by rule 77(1) of the Court of Appeal Rules, attributing the lapse partly to non-supply of proceedings. The application was unopposed: despite service of the motion and hearing notice, the respondent filed no replying affidavit, grounds of opposition or submissions. The judge restated the settled principles governing the unfettered rule 4 discretion, drawing on Leo Sila Mutiso, Fakir Mohamed and Muringa Company, emphasising that no 'sufficient reasons' need be established, that delay must be satisfactorily explained, and that prejudice to the respondent must be balanced against the right of appeal. The judge cautioned that failure to serve a notice of appeal on time is not a mere technicality capable of resulting in striking out, but found the delay not inordinate, the application merited, and no prejudice established. The application was allowed with leave to serve the notice of appeal within 7 days, and no order as to costs was made since the application was unopposed.

Key legal issues

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01

Exercise of the single judge's discretion under rule 4 of the Court of Appeal Rules

Holding

The discretion is discretionary, unfettered and not confined to any closed list of factors; it should be exercised liberally and on just terms unless there is unexplained inordinate delay or the intended appeal is obviously unarguable.

Reasoning

The court distilled principles from Leo Sila Mutiso, Fakir Mohamed and Muringa Company: the rule 4 mandate requires no 'sufficient reasons', admits any relevant factors, and balances the applicant's right of appeal against prejudice to the respondent. The delay here was not inordinate, the application was unopposed, and no prejudice was shown.

p. 2
02

Effect of failure to serve a notice of appeal within 7 days under rule 77(1)

Holding

Non-service of a notice of appeal on time is not a mere technicality; it is a requirement whose non-compliance can lead to striking out of the appeal, though the court retained discretion to extend time for service.

Reasoning

The judge clarified this point for the applicant's benefit, correcting the applicant's characterisation of non-service as a technicality, before nonetheless finding the delay not inordinate and granting leave to serve out of time.

p. 3

Legal principles established

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  • Failure to serve a notice of appeal on time is not a mere technicality; non-compliance can result in the appeal being struck out.
  • The rule 4 discretion is wide and unfettered, to be exercised judicially on sound reasoning, with no fixed limit on the factors the court may consider.
  • A plausible and satisfactory explanation for delay is the key that unlocks the court's flow of discretionary power under rule 4.

Court orders

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  1. 1.Leave granted to the applicant to serve the notice of appeal on counsel for the respondent within 7 days from the date of the ruling
  2. 2.No order as to costs

Authorities

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Legislation

  • Court of Appeal Rulesrule 1(2)
  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 77(1)
  • Court of Appeal Rulesrule 82

Cases cited (5)

  • Muringa Company Limited vs Archdiocese of Nairobi Registered Trustees
    Civil Application No 190 of 2019; [2020] eKLR

    Principles guiding the court in exercise of discretion under rule 4

  • Muchugi Kiragu v James Muchugi Kiragu & Another
    Civil Application No NAI 356 of 1996

    Principles guiding the court in exercise of discretion under rule 4

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    [1999] 2 EA 231

    Settled principles for extension of time under rule 4

  • Fakir Mohamed v Joseph Mugambi & 2 Others
    [2005] eKLR

    Settled principles for extension of time under rule 4

  • Githere v Ndiriri

    Discretion must be exercised judicially, on sound reasoning and not on whim or caprice

On appeal from
High Court at Nairobi
HCCOMM/E527/2020 (also referred to as HCCC No E257 of 2020)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time jurisdiction of a single judge)

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, "Euromec International Limited v Shandong Taikai Power Engineering Co. Ltd", Case Analysis (2022). Civil Appeal (Application) E111 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1048/eng@2022-09-23

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