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Court of AppealDismissedCivil Application E136 of 2022· [2022] KECA 1213 (KLR)

Nairobi City Water & Sewerage Company v Capture Solutions Limited

Court of Appeal
4 November 2022
FSF SichaLE
751 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed Nairobi Water's third attempt to revive an appeal, ruling repeat applications for the same relief abuse the court process.

What this practically means

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Executive summary

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This is a ruling by F. SichaLE, JA, sitting as a Single Judge of the Court of Appeal at Nairobi, on a motion dated 25 April 2022 by Nairobi City Water & Sewerage Company seeking an extension of time to file an application for leave to appeal against a ruling of Majanja J of the High Court (Misc Application No. E679 of 2020) dated 27 August 2020, and priority hearing of any ensuing application before Civil Appeal No. E514 of 2020. The applicant attributed the delay to Covid-19 operational disruptions. The respondent opposed, pointing out that the applicant had already filed a similar application dismissed for being out of time, and that it had actively litigated during the pandemic. The court found it undisputed that the applicant had previously sought extension of time from a Single Judge (Ouko JA), dismissed on 23 April 2021, and leave to appeal from a three-Judge bench (M'inoti, Mohammed & Kantai JJ.A), dismissed on 4 March 2022, the latter ruling noting the applicant had reached a dead end under rule 4. Holding the fresh motion to be a gross abuse of the court process and a waste of judicial time, the Single Judge dismissed it in its entirety with costs to the respondent. The decision below was not disturbed; the ruling concerns only the applicant's repeated procedural applications.

Key legal issues

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01

Whether the motion was an abuse of court process

Holding

Yes. The identical relief (extension of time/leave to appeal against the ruling of 27 August 2020) had already been sought and dismissed twice - by Ouko JA as a Single Judge on 23 April 2021 and by M'inoti, Mohammed & Kantai JJ.A on 4 March 2022.

Reasoning

The court found it undisputed that the applicant had previously moved the Court twice for the same relief against the same orders, and both applications were dismissed for want of merit. The prior ruling had expressly noted the applicant had reached a dead end on extension of time under rule 4. Renewing the application wasted judicial time and constituted a gross abuse of process, warranting dismissal with costs.

Legal principles established

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  • A party cannot re-litigate before the Court of Appeal an application for extension of time or leave to appeal that has already been dismissed by a Single Judge and a three-Judge bench of the same Court; doing so is an abuse of process.

Court orders

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  1. 1.The applicant's motion dated April 25, 2022 is dismissed in its entirety with costs to the respondent
On appeal from
High Court of Kenya at Milimani Commercial & Tax Division
Misc Application No. E679 of 2020
Jurisdiction invoked
Articles 159(d), 164(3), 201(d), 227, 259 of the Constitution; Sections 2, 3A, 3B Appellate Jurisdiction Act; Rules 4, 39(b), 47 Court of Appeal Rules

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, "Nairobi City Water & Sewerage Company v Capture Solutions Limited", Case Analysis (2022). Civil Application E136 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1213/eng@2022-11-04

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