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Court of AppealAllowedCivil Application (Rule 4) arising from Civil Appeal No. 540 of 2018· [2024] KECA 893 (KLR)

Kenya Power & Lighting Co. Limited v Attorney General & another (Civil Application E253 of 2024) [2024] KECA 893 (KLR)

Court of Appeal of Kenya
26 July 2024
810 words in judgment
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The bottom line

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Kenya's Court of Appeal gave Kenya Power more time to appeal, accepting that a state corporation's internal board approvals reasonably explain a one-month filing 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, delivered by S. ole Kantai, JA, on 26th July 2024, on a Motion under Rule 4 of the Court of Appeal Rules, 2022 by Kenya Power & Lighting Company Limited seeking an extension of time to file a Notice of Appeal against a judgment delivered on 4th April 2024 in Civil Appeal No. 540 of 2018, in which the applicant was found liable for causing the arrest and prosecution of the respondent and damages were awarded against it. The applicant explained that internal approvals, granted on 9th May 2024, delayed the lodging of the Notice of Appeal, and annexed a draft Memorandum of Appeal containing four grounds, including that the judgment wrongly held a bona fide complainant liable for the prosecutor's failure to prosecute and attributed police action to a party with no control over the police. The 1st respondent opposed, contending the application was a delay tactic and that he had not enjoyed the fruits of a judgment in his favour since 2018. Applying the settled Rule 4 factors — length of delay, reason for delay, arguability of the appeal, and prejudice to the respondent — drawn from Fakir Mohamed v Joseph Mugambi & 2 Others [2005] eKLR, the judge held the delay of just over one month was not inordinate and was well explained, noting that a public corporation with a board of directors may take time to decide, and that proceedings had been requested on the date of judgment. Finding reasonable grounds of appeal and concluding that final settlement of all issues on appeal was preferable, the court allowed the Motion, directing the applicant to lodge the Notice of Appeal within seven days, with costs in the appeal. This is an interlocutory ruling and does not disturb any decision below; it binds no proposition beyond the discretionary principles applied.

Key legal issues

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01

Whether the delay of just over one month in filing the Notice of Appeal was inordinate

Holding

The delay was not inordinate and the reason for it — the need for internal approvals by a public corporation with a board of directors — was well explained.

Reasoning

The court noted that judgment was delivered on 4th April 2024 and approval to appeal was given on 9th May 2024, just over a month later. It accepted that a public corporation with a board of directors may need some time to make decisions, and that the applicant had immediately requested proceedings on the date of judgment, showing diligence.

p. 2
02

Whether the applicant demonstrated an arguable appeal

Holding

A perusal of the draft Memorandum of Appeal disclosed reasonable grounds to be argued on appeal, satisfying the arguability threshold.

Reasoning

The draft Memorandum of Appeal set out four grounds, including that the judgment below held the applicant liable for the prosecutor's failure to prosecute a criminal matter and attributed police action to the applicant despite lacking authority or control over the police, and that the judgment disregarded precedent of the Court.

p. 2
03

Whether the respondent would suffer prejudice if the extension was granted

Holding

The respondent's complaint of being deprived of the fruits of judgment for years did not outweigh the interest in having all issues finally settled on appeal.

Reasoning

The 1st respondent argued that litigation must end and that he had not enjoyed the fruits of his 2018 judgment. The court balanced this against the applicant's explained delay and arguable grounds, concluding that final settlement of all contested issues on appeal was preferable in the circumstances.

p. 2

Legal principles established

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  • In an extension-of-time application under Rule 4, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, and the degree of prejudice to the respondent.
  • It is preferable that all issues in contention be finally settled on appeal notwithstanding a respondent's deprivation of the fruits of judgment for some years, where the delay is not inordinate and is explained.

Court orders

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  1. 1.Time is extended to enable the applicant to file a Notice of Appeal from the judgment delivered on 4th April, 2024 in Civil Appeal No. 540 of 2018
  2. 2.The applicant to lodge the Notice of Appeal within seven (7) days of the ruling
  3. 3.Costs of the Motion to be in the appeal

Authorities

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Legislation

  • The Court of Appeal Rules, 2022Rule 4

Cases cited (1)

  • Fakir Mohamed v Joseph Mugambi & 2 Others
    [2005] eKLR
On appeal from
High Court of Kenya
null
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022 (extension of time to file Notice of Appeal)

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, "Kenya Power & Lighting Co. Limited v Attorney General & another (Civil Application E253 of 2024) [2024] KECA 893 (KLR)", Case Analysis (2024). Civil Application (Rule 4) arising from Civil Appeal No. 540 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/893/eng@2024-07-26

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