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Court of AppealDismissedNot stated in the judgment as provided· [2024] KECA 175 (KLR)

Corrugated Sheets Limited v Kimwwoya & another (Civil Application E045 of 2023) [2024] KECA 175 (KLR)

Court of Appeal of Kenya
23 February 2024
KLK. I. Laibuta
1,008 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because the applicant filed its request for court proceedings late and never served it on the other side.

What this practically means

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Executive summary

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This was a single-judge application before the Court of Appeal at Nairobi, delivered on February 23, 2024 by Dr. K. I. Laibuta, JA, under rule 4 of the Court of Appeal Rules. The applicant sought extension of time to file its record of appeal out of time, together with an order that costs of the application be in the appeal. The impugned judgment had been delivered on April 28, 2022; the applicant lodged its notice of appeal on May 18, 2022, but its letter bespeaking proceedings was filed 46 days after judgment and was never served on the respondent. Certified proceedings and a certificate of delay were only collected on May 16, 2023, and no steps were taken for over eight months thereafter. The respondent opposed the motion, contending that the delay was inordinate and unjustified, that the intended appeal was not arguable, and in the alternative sought security for costs. The court held that under rule 84(2) an appellant is not entitled to rely on the proviso to rule 84(1) unless the application for proceedings was in writing and served on the respondent; since the applicant's letter was both late and unserved, rule 84 disentitled it from invoking the court's rule 4 discretion. The court further found the eight-month post-collection inaction inexcusable. The motion was dismissed with costs to the respondent. The decision turned on procedural compliance rather than the merits of the intended appeal.

Key legal issues

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01

Whether the applicant qualified for the proviso to rule 84(1)

Holding

The applicant did not qualify because its letter bespeaking proceedings was filed 46 days after judgment and was never served on the respondent, contrary to rule 84(2).

Reasoning

Rule 84(2) requires both that the application for proceedings be in writing and that a copy be served on the respondent. The applicant's letter was filed outside the 30-day window and was never served, so the proviso's time exclusion could not operate in its favour, closing the door to the rule 4 discretion.

p. 2
02

Whether the unexplained post-collection delay was excusable

Holding

The delay of over eight months after collecting the proceedings and certificate of delay was inexcusable and weighed against extension.

Reasoning

Counsel collected the certified proceedings and certificate of delay on May 16, 2023 but took no step to file the record of appeal for more than eight months, offering no explanation. This inaction, in addition to the procedural infractions, made the application unmeritorious and justified dismissal with costs.

p. 2

Legal principles established

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  • An appellant cannot rely on the proviso to rule 84(1) unless the application for proceedings was in writing and served on the respondent.
  • Late filing and non-service of the letter bespeaking proceedings disentitle an applicant from the court's discretion to extend time under rule 4.

Court orders

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  1. 1.The applicant's notice of motion dated May 26, 2023 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 84(1)
  • Court of Appeal Rulesrule 84(2)
  • Constitution of Kenyaarticle 159

Cases cited (9)

  • Muringa Company Limited v Archdiocese of Nairobi Registered Trustees
    [2020] eKLR
  • Njoroge v Kimani
    [2022] KECA 1188 (KLR)
  • Vishva StoneI Suppliers Company Limited v RSR Stone [2006] Limited
    [2020] eKLR
  • David Chege Kiarii v Cooperative Bank of Kenya Limited
    [2021] eKLR
  • Tharaka Nithi County Government & another v Gaichu & 129 others
    [2022] eKLR
  • General Daudi Tonje & another v John Tonje
    [2020] eKLR
  • County Government of Mombasa v Kooba Kenya Limited
    [2019] eKLR
  • Abdulaziz Ngoma v Mungai Muthoya
    [1976] eKLR
  • Patrick Njuguna Kariuki v Del Monte Kenya Limited
    [2020] eKLR
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion to extend time)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Corrugated Sheets Limited v Kimwwoya & another (Civil Application E045 of 2023) [2024] KECA 175 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/175/eng@2024-02-23

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