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Court of AppealAllowedCivil Appeal (Application) E312 of 2022· [2022] KECA 1325 (KLR)

Waiyaki Way Developers Limited & another v Waweru & another

Court of Appeal
2 December 2022
GMGWN Macharia
1,361 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a company extra time to appeal, ruling that waiting for board approval is a valid reason for delay.

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 GWN Macharia, JA, on a notice of motion dated 29th August 2022 brought under rule 4 of the Court of Appeal Rules seeking enlargement of time to file a Notice of Appeal against a High Court ruling of 24th June 2022 (D.S. Mananja, J) in H.C. Misc. Application No. E086 of 2020, which had dismissed the applicants' application to enforce an undertaking as to damages executed by the respondents. The respondents opposed, arguing the delay was inexcusable, the applicants were indolent, and the intended appeal was an abuse of process. The court framed a single issue: whether the application met the threshold for the orders sought. Applying the Leo Sila Mutiso principles (length of delay, reason for delay, chances of success, prejudice), the court found a two-month delay explained by the corporate board's need to meet and decide on an appeal, held the applicants were not indolent, found the draft memorandum of appeal arguable, and allowed the application. The applicants were permitted to file and serve the notice of appeal within 14 days and the record of appeal within 60 days, with costs of the application in the intended appeal. The decision below was not disturbed; this ruling concerns only access to the appellate process.

Key legal issues

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01

Whether the applicants met the threshold for extension of time under rule 4 of the Court of Appeal Rules

Holding

The application was merited; the delay of about two months was explained by the need for board approval, the intended appeal was arguable, and no prejudice to the respondents was shown.

Reasoning

The court applied the Leo Sila Mutiso principles: length of delay, reason for delay, chances of success and prejudice to the respondent. It found the two-month delay attributable to the corporate board's decision-making process, not indolence; the draft memorandum raised arguable issues; and the applicants deserved an opportunity to ventilate their case.

p. 3

Legal principles established

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  • A counsel does not need a copy of the full judgment being appealed from, nor necessarily client instructions, to file a notice of appeal.
  • Where a decision to appeal rests with a board rather than an individual, resulting delay may be excused and does not amount to indolence.

Court orders

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  1. 1.The applicants are allowed to file and serve the notice of appeal within 14 days of the ruling
  2. 2.The applicants do file and serve the record of appeal within 60 days
  3. 3.The costs of the application shall be in the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (3)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 others
    [2013] eKLR

    Threshold for grant of extension of time orders

  • Wasike v Swala
    [1984] KLR

    Threshold for extension of time

  • Leo Sila Mutiso v Helen Wangari Mwangi
    [1999] 2 EA p231

    Principles for exercise of discretion under rule 4: length and reason for delay, chances of success, prejudice

On appeal from
High Court at Nairobi
H.C. Misc. Application No. E086 of 2020
Jurisdiction invoked
Rule 4 of the 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, "Waiyaki Way Developers Limited & another v Waweru & another", Case Analysis (2022). Civil Appeal (Application) E312 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1325/eng@2022-12-02

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