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Court of AppealAllowedCivil Application No. E269 of 2024 (as stated in the motion; Notice of Motion dated 16th May 2024)

Kenya Airports Authority v Machiri Limited (Civil Application E229 of 2024) [2024] KECA 1611 (KLR)

Court of Appeal of Kenya
8 November 2024
1,905 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

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Kenya's Court of Appeal gave Kenya Airports Authority more time to appeal an arbitration ruling, showing courts will forgive roughly two-month delays when there's a genuine explanation.

What this practically means

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Executive summary

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This is a ruling of a Single Judge of the Court of Appeal (F. Sichale, JA) delivered at Nairobi on 8th November 2024 on a Notice of Motion dated 16th May 2024 by Kenya Airports Authority. The applicant sought extension of time to file an application for leave to appeal against a ruling of Mabeya, J delivered on 21st March 2024 in High Court Commercial Arbitration Case No. E057 of 2023 (consolidated with HCCOMMARB No. E053 of 2023), which dismissed the applicant's application to set aside an arbitral award and adopted the award as a decree of the court. The dispute arose from a 2014 procurement contract for demolition works at Jomo Kenyatta International Airport. The respondent opposed, contending the 43-day delay was inordinate, motivated only by imminent execution, and that no leave could lie. Applying the settled Rule 4 guidelines from Mwangi v Kenya Airways and Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the judge held that the delay of about 56 days was not inordinate, that the reason - taking advice on challenging a Garnishee Order Nisi issued on 14th May 2024 - was plausible, and that the applicant, as a statutory corporation funded by public appropriations, would suffer great prejudice if the motion were refused. The judge declined to assess the merits of the intended appeal at that stage. The motion was allowed as prayed, with costs of the motion to abide the outcome of the intended appeal. The decision below was not disturbed at this interlocutory stage.

Questions the Court framed

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

  1. 1.Whether the applicant should be granted extension of time to file its application for leave to appeal against the High Court ruling of 21st March 2024
  2. 2.Whether the delay of about 43-56 days was inordinate and excusable
  3. 3.Whether the applicant had demonstrated sufficient reason for the delay and absence of prejudice to the respondent

Key legal issues

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01

Whether a delay of about 56 days in filing an application for leave to appeal was inordinate

Holding

The delay was not inordinate; the reason offered (considering and taking advice on challenging Garnishee proceedings) was reasonable and plausible, the motion having been filed two days after the Garnishee Order Nisi.

Reasoning

The judge noted the respondent had been aware of the applicant's intention to appeal from the Notice of Appeal filed on the day of the ruling. The delay of about 56 days from the ruling was measured against the explanation that the applicant was considering how to challenge the Garnishee Order Nisi issued on 14th May 2024; the motion followed two days later. The delay was therefore excusable and not inordinate.

p. 4
02

Prejudice balance between a statutory corporation facing execution and the decree-holder

Holding

The applicant, as a statutory corporation funded by public appropriations, would suffer great prejudice if the motion were not allowed, while the respondent would still have its day in court.

Reasoning

The applicant contended that its funds come from taxes through appropriations and that payment of the decretal sum of Kshs 812,047,278.53 would impede its statutory mandate under the Kenya Airports Authority Act. The judge accepted this, reasoning that the respondent would ultimately have the opportunity to ventilate its position in court, so granting the extension caused no irreversible prejudice.

p. 4
03

Merits of the intended appeal at the extension-of-time stage

Holding

A Single Judge on an extension-of-time application should not delve into the merits of the intended appeal.

Reasoning

Although the respondent argued that the intended leave application had no chance of success because the ruling did not set aside the arbitral award under Section 35 of the Arbitration Act, the judge declined to determine the merits of the intended appeal, holding that this was not the appropriate stage. The factor of arguability was thus left unexamined and the decision rested on delay, reasons and prejudice.

p. 4

Legal principles established

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  • In an application for extension of time under Rule 4, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent, exercising a wide but judicious discretion.

Court orders

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  1. 1.The applicant's motion dated 16th May 2024 is allowed as prayed
  2. 2.Time extended as sought for filing the application for leave to appeal against the High Court ruling of 21st March 2024
  3. 3.The costs of the motion shall abide the outcome of the intended appeal

The bench

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

majority

Wrote the judgment

On appeal from
High Court of Kenya
High Court Commercial Arbitration Case No. E057 of 2023 as consolidated with HCCOMMARB No. E053 of 2023
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9 and Rule 4 of the Court of Appeal Rules 2022, the Court sitting as a Single Judge

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.

It is now well settled that the decision whether or not to extend time for appealing is essentially discretionary.
p. 4Discretionary nature of extension of time
The Court has wide and unfettered discretion in deciding whether to extend time or not. However, in exercising its discretion the Court should do so judiciously.
p. 3Judicious exercise of Rule 4 discretion
Accordingly, the applicant’s motion dated 16th May 2024, is merited and the same is hereby allowed as prayed.
p. 4Final orders
The costs of this motion shall abide the outcome of the intended appeal. It is so ordered.
p. 4Costs order

Issues in the judgment

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minor

The motion also sought leave to appeal, but the ruling's reasoning addresses only extension of time and allows the motion 'as prayed' without expressly analysing the leave and jurisdiction objections under Section 35 of the Arbitration Act.

minor

Delay stated inconsistently as 43 days (by counsel) and 56 days (by the court, measured from the ruling rather than the due date).

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 Airports Authority v Machiri Limited (Civil Application E229 of 2024) [2024] KECA 1611 (KLR)", Case Analysis (2024). Civil Application No. E269 of 2024 (as stated in the motion; Notice of Motion dated 16th May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1611/eng@2024-11-08

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