Mereka & Co. Advocates v New Cooperative Kenya Creameries Limited
The bottom line
#The Court of Appeal refused to forgive a 24-month filing delay, confirming that COVID-19 and vague excuses no longer justify late appeals in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Extension of time under rule 4 of the Court of Appeal Rules
The application was refused because the delay of 24 months was inordinate and unexplained
The court applied the settled rule 4 factors: length of delay, reason for delay, chances of success and prejudice. The certificate of delay explained only part of the period; medical absence ended by October 2020 with no explanation thereafter; counsel's studies were unsupported by evidence; and e-filing was available during the pandemic. Unexplained inordinate delay justified refusal.
Arguability of the intended appeal
The court could not assess arguability because the draft memorandum of appeal, though said to be attached, was not included
An applicant asserting a high probability of success must place before the court the draft memorandum of appeal. Its absence meant the court could not ascertain whether the intended appeal, concerning the applicant's Bill of Costs, would succeed, weighing against extension of time.
Legal principles established
#- On an extension-of-time application the whole period of delay must be declared and satisfactorily explained, and the discretion is exercised judiciously considering length of delay, reason, arguability and prejudice
- The COVID-19 pandemic did not excuse filing delays after the April 2020 practice directions enabled e-filing and e-service
Court orders
#- 1.The Notice of Motion dated 8th January 2021 is dismissed
- 2.No orders as to costs, the respondent not having participated in the proceedings
- On appeal from
- High Court at Nairobi
- Makueni ELC No.1 of 2019
- Jurisdiction invoked
- Sections 3A and 7 of the Appellate Jurisdiction Act, rule 4 of the Court of Appeal Rules and Article 48 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mereka & Co. Advocates v New Cooperative Kenya Creameries Limited", Case Analysis (2022). Civil Appeal (Application) E034 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1150/eng@2022-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.