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Court of AppealDismissedCivil Application E034 of 2022· [2022] KECA 1103 (KLR)

Amarnath Enterprises Limited v Rahans Investment Limited & another

Court of Appeal
7 October 2022
1,382 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to extend time for a late appeal because the applicant couldn't prove the court registry caused the delay.

What this practically means

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Executive summary

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Amarnath Enterprises Limited applied under Rule 4 of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act for extension of time to file and serve its Memorandum and Record of Appeal against the judgment of the Environment and Land Court at Mombasa (Yano, J) delivered on 15th July 2020 in ELC No. 164 of 2009, in which Rahans Investment Limited's trespass claim had succeeded. The applicant attributed the delay to the late supply of certified proceedings, said to have been availed only on 24th March 2022, and to time spent on a stay application in the superior court. The respondents opposed, contending the notice of appeal and record were served well outside the periods prescribed by the Court's rules and without explanation. Lessit, JA restated the settled Rule 4 factors - length of and reason for delay, arguability of the appeal and prejudice to respondents - and the requirement of a plausible, satisfactory explanation. The notice of appeal was lodged on 12th August 2020, so the record was due by 12th October 2020, yet was filed 485 days late. Critically, although the applicant invoked the proviso to Rule 84(1) excluding time taken to prepare proceedings, it did not annex the registrar's certificate of delay that the proviso requires, and so could not benefit from it. The court held the delay inordinate and unexplained and the applicant undeserving of the discretionary relief, and dismissed the application. No costs order was recorded.

Key legal issues

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01

Sufficient reason for delay under Rule 4

Holding

Delay of 485 days in filing the memorandum and record of appeal was inordinate and unexplained; the applicant failed to establish sufficient reason

Reasoning

The court applied the settled Rule 4 factors: length of delay, reason for delay, arguability and prejudice. The notice of appeal was lodged on 12/8/2020, so the record was due by 12/10/2020 but was filed 485 days later. The explanation - delayed supply of proceedings - failed because the applicant did not obtain the registrar's certificate of delay required by the proviso to Rule 84(1).

p. 2
02

Reliance on delay in supply of proceedings

Holding

Without a certificate of delay from the registrar of the superior court, an applicant cannot benefit from the proviso to Rule 84(1) excluding time taken to prepare proceedings

Reasoning

Rule 84(1) allows exclusion of time certified by the registrar as required for preparation and delivery of proceedings. The applicant annexed correspondence and a stamped last page of certified proceedings but no certificate; the exclusion mechanism was therefore unavailable and the full 485 days counted against it.

Legal principles established

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  • Under the proviso to Rule 84(1), a party relying on delay in supply of proceedings must annex a certificate of delay from the registrar of the superior court
  • An inordinate and unexplained delay disentitles an applicant to extension of time under Rule 4

Court orders

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  1. 1.The application dated 8th July 2019 seeking extension of time to file and serve the Memorandum and Record of Appeal was dismissed

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 84(1)
  • Court of Appeal RulesRule 118
  • Appellate Jurisdiction Actsections 3A and 3B

Cases cited (3)

  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    [2018] eKLR

    Principles applied in Rule 4 extension-of-time applications

  • Njeri Njoroge v Joseph Maina Gichuhi & another
    (2018) eKLR

    No limit to factors a court may consider under Rule 4 so long as relevant

  • Abdul Aziz Ngoma v Mungai Mathayo & another
    [1976] eKLR

    Delay must be satisfactorily explained; sufficient reason unlocks discretion

On appeal from
Environment and Land Court at Mombasa
ELC No. 164 of 2009
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act

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, "Amarnath Enterprises Limited v Rahans Investment Limited & another", Case Analysis (2022). Civil Application E034 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1103/eng@2022-10-07

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