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Court of AppealDismissedCivil Application 91 of 2019· [2022] KECA 1053 (KLR)

Shelly Beach Hotel & another v Ngugi

Court of Appeal
7 October 2022
JLJW Lessit
2,309 words in judgment
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·~9 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to give a hotel more time to file its appeal because a delay of over a year, blamed partly on Covid-19, was inexcusable.

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 Mombasa (Lessit, JA) on an application by Shelly Beach Hotel and Kensington International Limited for directions to file and serve the memorandum and record of appeal out of time. The applicants had been granted leave to appeal out of time against the High Court judgment of P.J. Otieno, J delivered on 24 January 2019 in HCCC No. 306 of 2001, by a ruling of 3 April 2020 which gave them 45 days to file the record. They claimed they were never served with notice of that ruling's delivery, which occurred during the Covid-19 pandemic, and only learned of it in July 2020; they filed the present application on 3 December 2021. The respondent opposed, arguing laches, an inordinate delay of 563 days, and prejudice. The judge confirmed the court's power under Rule 4 to extend time limited by its own prior decision, but applying the Salat extension-of-time principles, held that a delay of one year four to seven months was inordinate and inexcusable, that the applicants slept on their rights after becoming aware of the ruling, and that the pandemic could not explain the delay in the circumstances. The application was dismissed with costs to the respondent. The ruling affirms that extension of time is an equitable, discretionary remedy requiring explanation of delay, absence of prejudice, and promptness.

Key legal issues

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01

Discretion to extend time limited by a prior order of the Court

Holding

The Court has power under Rule 4 to extend time limited by its own ruling, but the applicants were undeserving of that discretion

Reasoning

Rule 4 permits extension of time limited by the Rules or by any decision of the Court. The applicants sought extension of the 45 days granted in the ruling of 3rd April 2020. Applying the Salat principles, the court found the delay of over a year unexplained and the applicants indolent, and declined the discretion.

p. 3
02

Whether the delay was inordinate and inexcusable

Holding

A delay of 1 year 4 to 7 months is inordinate and inexcusable and cannot be attributed to Covid-19

Reasoning

Whether computed from actual delivery of the ruling or from the applicants' claimed awareness, the delay was substantial. The applicants slept on their rights for over a year after learning of the ruling. The pandemic affected courts, but in the circumstances it could not explain away the delay.

p. 4

Legal principles established

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  • Extension of time is an equitable remedy, not a right, granted at the court's discretion to a deserving party who must explain delay and show no prejudice
  • The Court may extend time limited by its own prior decision on just terms

Court orders

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  1. 1.The application dated 3rd December 2021 is dismissed with costs to the respondent

Authorities

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Legislation

  • Retired Court of Appeal Rules, 2010Rules 3, 4, 5(b), 42, 43, 49, 82, 87 and 91
  • Court of Appeal Rules, 2022Rules 3, 4, 5(b), 44, 45, 51, 84, 89 and 93

Cases cited (4)

  • Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others
    Supreme Court Application No. 16 of 2014 [2014] eKLR

    Principles governing applications for extension of time

  • Vishva Stone Suppliers Company Limited v. RSR Stone (2006) Limited
    Civil Application No. 55 of 2020 (2020) eKLR

    Discretionary power of the Court under Rule 4

  • Daphne Parry v. Murray Alexander Carson
    [1963] EA 546

    Sufficient reason for extension of time must receive liberal construction but guard against sympathy where no valid excuse exists

  • Parimal v. Veena Bharti
    Civil Appeal 1467 of 2011 (2011)

    Sufficient cause means the party did not act negligently or without bona fides

On appeal from
High Court at Mombasa
HCCC No. 306 of 2001
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time limited by the Rules or by any decision of the Court)

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, "Shelly Beach Hotel & another v Ngugi", Case Analysis (2022). Civil Application 91 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1053/eng@2022-10-07

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