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Court of AppealDismissedCivil Application (extension of time motion dated 21st June 2023)

Nextgen Office Suites Limited v Kimani & 6 others (Civil Application E286 of 2023) [2024] KECA 378 (KLR)

Court of Appeal of Kenya
28 March 2024
1,038 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused Kenya Safari developer's late appeal because months of unexplained delay and weak excuses don't earn extra time to appeal.

What this practically means

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Executive summary

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This is a single-judge decision of the Court of Appeal (Kiage, JA) delivered at Nairobi on 28th March 2024 on a notice of motion dated 21st June 2023. The applicant, Africa Safari Developers Limited, sought extension of time to lodge a notice of appeal against a ruling of the Environment and Land Court (Angote, J.) delivered on 16th March 2023, the time having lapsed on 31st March 2023. The applicant attributed its default to a change of advocates, internal corporate processes, and an initial, later-withdrawn decision to seek review of the ruling rather than appeal. The respondents opposed, arguing the application was res judicata because a prior application (Civil Application No. 162 of 2023) had been dismissed by Laibuta, JA on 9th June 2023. Kiage, JA rejected the res judicata objection, holding that the earlier ruling had struck out the application on the jurisdictional ground that no notice of appeal had been lodged under Rules 77 and 79, and therefore no determination on the merits had occurred. On the merits, applying the well-known factors from Leo Sila Mutiso v Hellen Wangari Mwangi and Nicholas Kiptoo Arap Korir Salat v IEBC, the judge found the delay inordinate and implausibly explained, noting a candour deficit and the applicant's pursuit of mutually exclusive processes while enjoying able counsel. The application was dismissed with costs. The respondents' objection that the applicant had pursued review and could not now appeal was noted but the application failed primarily on the inadequacy of the explanation for the delay.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application is res judicata having regard to the earlier dismissal of Civil Application No. 162 of 2023 by Laibuta, JA
  2. 2.Whether the applicant should be granted extension of time to file and serve a notice of appeal against the ELC ruling of 16th March 2023

Key legal issues

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01

Res judicata vis-à-vis the earlier Rule 4 application dismissed on 9th June 2023

Holding

The application was not res judicata because the earlier application was struck out on a jurisdictional point (absence of a notice of appeal) rather than determined on the merits of the extension of time sought

Reasoning

Laibuta, JA's ruling of 9th June 2023 struck out the applicant's prior application for want of a notice of appeal in compliance with Rules 77 and 79. Since no merits determination was made, there was no 'judicata'. The single judge therefore proceeded to the merits of the fresh application.

p. 2
02

Whether extension of time should be granted

Holding

Refused. The delay was inordinate and the explanation - change of advocates, corporate processes, and an initial decision to seek review - was implausible and marked by a candour deficit

Reasoning

The court reiterated the Sila Mutiso and Salat factors: length of delay, reasons for delay, arguability of the intended appeal and prejudice to respondents. The applicant had pursued mutually exclusive processes (review and appeal) while enjoying able counsel, and respondents had repeatedly been put to respond. The explanation did not amount to a plausible account, so the unfettered discretion could not be exercised favourably.

p. 3

Legal principles established

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  • Extension of time under Rule 4 of the Court of Appeal Rules is not granted as of right; the single judge exercises a discretion weighing the length of and explanation for the delay, the chances of the appeal succeeding, and prejudice to respondents

Court orders

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  1. 1.The motion dated 21st June 2023 seeking extension of time to file and serve a notice of appeal was dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Environment and Land Court
null
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (single judge jurisdiction to extend or enlarge time)

Relief refused

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Extension of time to lodge a notice of appeal against the ELC ruling of 16th March 2023

The delay was inordinate and implausibly explained; the applicant's reasons (change of advocates, internal corporate consultations, initial pursuit of review) did not amount to a plausible explanation and there was a candour deficit

p. 3

Costs

The application was dismissed with costs (costs awarded to the respondents)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Extension of time under Rule 4 is not given as of right. A single judge, exercising the judicial discretion considers a number of matters including the length of delay; the reason or explanation for the delay; (possibly) the chances of the intended appeal succeeding, and the likelihood of prejudice to be visited upon the respondents if the application is allowed.
p. 3Principles governing Rule 4 extension of time
I note that in his ruling dated 9th June 2023, my learned brother Laibuta, JA did not determine the applicant’s application on the merits of the sought extension of time, but struck it out on the jurisdictional question of absence of a notice of appeal.
p. 2Res judicata requires a determination on the merits
I am not sure that it is a persuasive argument for the applicant to now say it got this late in filing a notice of appeal because it was engaged in internal corporate consultations and had backed the wrong horse somewhere along the way.
p. 3Internal corporate consultations do not excuse delay
In the result, I cannot exercise my discretion favourably and must reject the application as unmeritorious.
p. 3Final orders - application dismissed
The same is dismissed with costs. Order accordingly.
p. 3Final orders - dismissal with costs

Issues in the judgment

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minor

The supporting affidavit is described as sworn on 19th June 2023 but the motion is dated 21st June 2023, so the affidavit predates the motion it supports; the judgment also contains typographical errors (e.g. 'efiect', 'one are Rameshi kumar Kantilal Amlani', review application dated '2nd April 2022')

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, "Nextgen Office Suites Limited v Kimani & 6 others (Civil Application E286 of 2023) [2024] KECA 378 (KLR)", Case Analysis (2024). Civil Application (extension of time motion dated 21st June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/378/eng@2024-03-28

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