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Court of AppealDismissedCivil Application E103 of 2022· [2022] KECA 1109 (KLR)

Eswari Electricals Ltd v Empower Installations Ltd & another

Court of Appeal
7 October 2022
1,246 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time for a late appeal, finding a 26-month delay unexplained and the winning party already prejudiced.

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 Nairobi by Sichale, JA, on an application under rule 4 of the Court of Appeal Rules 2010 by Eswari Electricals Ltd seeking extension of time to appeal out of time against the judgment and decree of Majanja J of the High Court (Commercial & Tax Division Civil Case No. 106 of 2013) delivered on January 30, 2020. The applicant had filed its notice of appeal on February 26, 2020, about 12 days out of time, and brought the present motion in March 2022 - roughly 26 months after judgment. It attributed the delay to an honest mistake by its advocates in computing time and to difficulty accessing court registries during the Covid-19 pandemic. The 1st respondent opposed, pointing out that the notice was filed out of time, that no steps were taken until garnishee proceedings in August 2021, and that part of the decree had already been executed, with funds held by Bank of India remitted to its advocates and partly utilised as costs. The court restated the settled rule 4 principles from Fakir Mohamed v Joseph Mugambi & 2 others: length of delay, cause of delay, possibility of the appeal succeeding, and prejudice. It found the 26-month delay inordinate and unexplained, holding that the claimed mistake smacked of negligence and that the Covid-19 excuse lacked evidential support. Prejudice to the 1st respondent was uncontroverted. The motion was dismissed with costs to the 1st respondent. The decision below was not disturbed; the applicant remains without an extension, so no appeal lies against the High Court judgment.

Key legal issues

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01

Principles for extension of time under rule 4

Holding

The court's discretion is wide and unfettered but must be exercised judiciously, weighing length of delay, cause of delay, arguability of the appeal and prejudice.

Reasoning

The court restated the settled rule 4 principles from Fakir Mohamed v Joseph Mugambi & 2 others, then applied each factor to the facts: a 26-month delay, unconvincing explanations of mistake and Covid-19 registry access difficulties, and uncontroverted prejudice from part-execution of the decree.

p. 2
02

Whether the delay was excusably explained

Holding

An advocate's mistaken computation of time in a case of magnitude amounts to negligence, and unsupported claims of Covid-19 registry access difficulties do not explain the delay.

Reasoning

The single judge found the twin explanations - honest mistake in computing time and pandemic-related registry access problems - implausible. Judicial notice was taken that courts were scaled down but operating; no evidence of actual difficulty or efforts made was on record.

p. 2
03

Prejudice to the respondent

Holding

Part-execution of the decree, with remitted funds partly utilised as costs and irrecoverable, established prejudice that the applicant did not controvert.

Reasoning

The 1st respondent showed the decree had been partly executed pursuant to orders of September 10, 2021, with money held by Bank of India remitted to its advocates and part utilised as costs. The applicant did not rebut this, satisfying the prejudice factor against extension.

p. 3

Legal principles established

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  • In exercising its discretion under rule 4 to extend time, the court considers the length of the delay, the causes of the delay, the possibility of the appeal succeeding and the prejudice to be occasioned to the parties, and must act judiciously.

Court orders

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  1. 1.The applicant's motion dated March 22, 2022 is dismissed with costs to the 1st respondent
On appeal from
High Court of Kenya at Nairobi
High Court Commercial & Tax Division Civil Case No. 106 of 2013
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules 2010

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, "Eswari Electricals Ltd v Empower Installations Ltd & another", Case Analysis (2022). Civil Application E103 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1109/eng@2022-10-07

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