Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application dated 26th October 2023 (arising from ELC No. 277 of 2011)· [2024] KECA 608 (KLR)

Jim's Fresh Vegetable Growers & Exporters Limited . Applicant v Locland Limited & 1 other

Court of Appeal of Kenya
24 May 2024
1,940 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal dismissed an attempt to revive a three-year-delayed appeal, confirming that even a strong appeal fails without a good explanation for delay.

What this practically means

#

Executive summary

#
This was a single-judge application ruling of the Court of Appeal at Nairobi, delivered by L. Achode JA on 24th May 2024, in which the applicant sought extension of time to lodge and serve a record of appeal against the judgment of E.O. Obaga J in ELC No. 277 of 2011 delivered on 5th May 2020, dismissing the applicant's suit (which sought specific performance, injunction, transfer of title or restitution of Kshs.32,500,000) and entering judgment on the defendants' counterclaim for eviction, mesne profits and the balance of the purchase price. The applicant, a company, attributed the delay of over three years to its director's illness (including Covid-19), delayed handover of the file by former advocates Kaplan & Stratton, and retrieval of proceedings from an archived court file. The respondent opposed, arguing the delay was inordinate and unexplained. The court held that the application properly fell under Rule 4 of the Court of Appeal Rules, 2022 rather than Rule 5(2). Applying Nicholas Salat, Imperial Bank v Alnasir Popat, Odongo v Housing Finance and Reliance Bank v Grandways Ventures, the court found the delay inordinate; the explanations unexcusable, since the company was not shown to be incapacitated and its advocates knew of the sixty-day deadline under Rule 84. Although the grounds of appeal were found arguable, the court held that arguability cannot substitute for a plausible explanation for delay. The application was dismissed with costs to the respondent, leaving the superior court judgment intact.

Key legal issues

#
01

Correct rule governing extension of time applications

Holding

The application, though brought under Rule 5(2) of the Court of Appeal Rules, 2022, properly falls under Rule 4, which confers jurisdiction to extend time

Reasoning

The applicant misidentified the enabling rule. Rule 4 empowers the Court to extend time for doing any act authorised or required by the Rules, whether before or after the act is done. Rule 5(2) concerns stay and other interlocutory relief pending appeal; extension of time to lodge a record of appeal is a Rule 4 matter. The court proceeded to determine it under Rule 4.

p. 3
02

Whether the delay was inordinate and excusable

Holding

The delay of more than three years was inordinate, and the reasons given (director's illness, delayed file handover, archived file) were not excusable

Reasoning

The Notice of Appeal was filed on 12th May 2020; the record of appeal was due within sixty days under Rule 84, yet the application was filed on 26th October 2023. The director's Covid-19 illness in 2020 did not incapacitate the company from giving instructions to Kaplan & Stratton Advocates, who were aware of the sixty-day deadline. The former advocates' failure to hand over the file and the archived court file did not suffice.

p. 4
03

Arguability of the intended appeal

Holding

The intended appeal was arguable, but arguability alone does not warrant extension of time without a satisfactory explanation for delay

Reasoning

The threshold for arguability is low - the word 'possibly' qualifies it - and the court found the grounds of appeal arguable. However, citing Odongo v Housing Finance and Reliance Bank v Grandways Ventures, even good appeals must be filed within prescribed periods, and an arguable appeal cannot override the onus of explaining the delay.

p. 4

Legal principles established

#
  • Applications for extension of time to lodge a record of appeal fall under Rule 4 of the Court of Appeal Rules, 2022, not Rule 5(2)(b)
  • Extension of time is discretionary and not automatic; the court considers length of delay, reasons, prejudice, conduct, and arguability
  • An arguable appeal does not entitle an applicant to extension of time without a satisfactory explanation for the delay

Court orders

#
  1. 1.The application dated 26th October 2023 is dismissed
  2. 2.Costs of the application awarded to the respondent
On appeal from
Environment and Land Court
ELC No. 277 of 2011
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Jim's Fresh Vegetable Growers & Exporters Limited . Applicant v Locland Limited & 1 other", Case Analysis (2024). Civil Application dated 26th October 2023 (arising from ELC No. 277 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/608/eng@2024-05-24

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