Nextgen Office Suites Limited v Kimani & 6 others (Civil Application E286 of 2023) [2024] KECA 378 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application is res judicata having regard to the earlier dismissal of Civil Application No. 162 of 2023 by Laibuta, JA
- 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
#Res judicata vis-à-vis the earlier Rule 4 application dismissed on 9th June 2023
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
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.
Whether extension of time should be granted
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
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.
Legal principles established
#- 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
#- 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
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
The application was dismissed with costs (costs awarded to the respondents)
Quotable passages
#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.
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.
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.
In the result, I cannot exercise my discretion favourably and must reject the application as unmeritorious.
The same is dismissed with costs. Order accordingly.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.