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Court of AppealDismissedCivil Appeal (Application) E189 of 2024· [2024] KECA 1934 (KLR)

Taj Mall Limited v Taj Millenium Management Limited

Court of Appeal
20 December 2024
1,322 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to forgive a five-month unexplained appeal delay, showing courts will not extend time without a credible reason.

What this practically means

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Executive summary

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Taj Mall Limited applied to the Court of Appeal for extension of time to serve its notice of appeal and to file its record of appeal, both of which had been lodged outside statutory timelines, in an appeal against the Environment and Land Court at Machakos (Ochieng J) judgment of 28 October 2021 in ELC No. 721 of 2012 concerning reversionary interest and mesne profits over LR No 209/14036. The applicant attributed the failure to serve the notice of appeal within seven days to advocate inadvertence, and the delay in filing the record of appeal to delay in obtaining certified proceedings, supported by a certificate of delay. The respondent opposed, contending the application was an afterthought prompted by a strike-out application against the record of appeal, that the 60-day period ran from collection of the proceedings on 28 July 2023 and lapsed on 28 September 2023, and that the record was filed in March 2024 with no explanation for the intervening months. Mumbi Ngugi JA identified the sole issue as whether to exercise the discretion under rule 4 of the Court of Appeal Rules, 2022, applying the settled factors from Leo Sila Mutiso and Fakir Mohammed. She found the delay of more than five months beyond the statutory period inordinate and unexplained, and declined to exercise discretion. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether extension of time should be granted to serve the notice of appeal and file the record of appeal

Holding

Application dismissed; the delay of over five months in filing the record of appeal was inordinate and unexplained, so discretion was not exercised in the applicant's favour.

Reasoning

The notice of appeal was filed in time but not served within the statutory seven days, attributed to advocate inadvertence. The proceedings were collected on 28 July 2023, making the record due by 28 September 2023, yet it was filed in March 2024. Blaming the judiciary did not excuse the delay beyond the certificate of delay, and no reason covered the excess period.

Legal principles established

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  • In an extension-of-time application the court considers the period of delay, the reason for the delay, possibly the arguability of the appeal, and prejudice to the respondent.
  • Without plausible and satisfactory reasons for an inordinate delay, the court cannot exercise its discretion in favour of the applicant.

Court orders

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  1. 1.The application dated 22nd August 2024 is dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrules 1(2), 4, 31, 42, 43 and 47
  • Court of Appeal Rules, 2022rule 4

Cases cited (2)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    [1999] 2 EA 231

    Factors for granting extension of time: length and reason for delay, arguability, prejudice.

  • Fakir Mohammed v Joseph Mugambi & 2 Other
    [2005] eKLR

    Factors for granting extension of time.

On appeal from
Environment and Land Court
ELC No. 721 of 2012
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022 (extension of time discretion)

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, "Taj Mall Limited v Taj Millenium Management Limited", Case Analysis (2024). Civil Appeal (Application) E189 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1934/eng@2024-12-20

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