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Court of AppealPartially AllowedRule 4 application dated 9th October 2024 (Nairobi)

Kukam Limited & another v Odundo (Civil Application E521 of 2024) [2025] KECA 1202 (KLR)

Court of Appeal of Kenya
4 July 2025
1,408 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal let two companies file their appeal late, finding a two-day delay and an honest explanation were enough to keep their case alive.

What this practically means

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Executive summary

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This is a single-judge (F. Sichale JA) ruling of the Court of Appeal at Nairobi delivered on 4th July 2025 on a Notice of Motion dated 9th October 2024 brought by Kukam Limited and Metra Investments Limited under Article 50(2)(k) and 159(2)(e) of the Constitution, Sections 3A and 3B of the Appellate Jurisdiction Act, and Rules 4 and 5(2)(b) of the Court of Appeal Rules 2022. The applicants sought enlargement of time to serve out of time, and to file, their intended appeal against the judgment of Mogeni J in Nairobi ELC Case No. 693 of 2016 delivered on 15th April 2024. The respondent opposed through a preliminary objection contending the Court lacked jurisdiction for want of compliance with Rules 4 and 77(1), and argued the Notice of Appeal was filed 17 days after judgment, outside the 14-day timeline, and that no prejudice or evidence of follow-up had been demonstrated. Applying the settled Rule 4 guidelines as restated in Mwangi v Kenya Airways Limited and Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the Court found the two-day delay in lodging the Notice of Appeal not inordinate, the explanation (previous advocates' failure to lodge the appeal, discovered on 26th September 2024) plausible and sufficient, and that the applicants would be shut from the seat of justice if the motion was refused. Arguability was left open. The motion was allowed as prayed: the Notice of Appeal was deemed filed within time, service was ordered within 7 days and filing of the appeal within 30 days, failing which the orders would stand vacated. Costs were to abide the outcome of the intended appeal. The ruling binds subordinate courts and tribunals on the Rule 4 principles applied.

Questions the Court framed

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

  1. 1.Whether the Court should enlarge time to serve the Notice of Appeal dated 2nd May 2024 out of time
  2. 2.Whether the Court should enlarge time for filing the intended appeal against the judgment delivered on 15th April 2024
  3. 3.Whether the preliminary objection alleging non-compliance with Rules 4 and 77(1) of the Court of Appeal Rules 2022 ousts the Court's jurisdiction

Key legal issues

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01

Whether the delay in serving the Notice of Appeal and filing the appeal was excusable

Holding

Yes. The delay in lodging the Notice of Appeal was only 2 days beyond the 14-day period and was not inordinate; the reasons attributed to the inaction of previous advocates were reasonable and plausible

Reasoning

The Court applied the established Rule 4 guidelines. Judgment was delivered on 15th April 2024 and the Notice of Appeal should have been lodged by 29th April 2024 but was lodged on 2nd May 2024, a delay of only 2 days, which was not inordinate. The applicants explained that they only discovered on 26th September 2024, upon meeting their previous advocates, that no appeal had been filed, whereupon they promptly filed the present motion. The Court found the explanation sufficient.

p. 3
02

Whether prejudice to the parties favoured extension of time

Holding

Yes. The applicants would be greatly prejudiced if shut out from the seat of justice, whereas allowing the motion gives both parties their day in Court

Reasoning

On the fourth principle, the Court weighed the prejudice to each side. Denying the extension would completely shut the applicants out of the seat of justice, while granting it would simply allow both parties to ventilate their respective positions before the Court. No irreparable prejudice to the respondent was found to outweigh this consideration, and the arguability of the appeal was left open since the Single Judge would not determine merits at that stage.

p. 3
03

Arguability of the intended appeal

Holding

Left open; a Single Judge sitting on a Rule 4 application would not determine the merits of the intended appeal

Reasoning

The Court declined to comment on the chances of the appeal succeeding, holding that this was not a matter for determination by a Single Judge at the extension-of-time stage. This confirms that the arguability factor, though listed in the Rule 4 guidelines, need not be conclusively resolved where the other factors favour extension.

p. 3

Legal principles established

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  • In deciding whether to extend 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
  • The Court's discretion under Rule 4 to extend time is wide and unfettered but must be exercised judiciously

Court orders

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  1. 1.The applicants' motion dated October 9, 2024 is allowed as prayed
  2. 2.The Notice of Appeal dated May 2, 2024 and lodged in Court on the same day is deemed to have been filed within time
  3. 3.The applicants to serve the Notice of Appeal on the respondent within 7 days from the date of the ruling
  4. 4.The applicants to file the appeal within 30 days from the date of the ruling, failing which the orders shall stand vacated
  5. 5.Costs of the motion to 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
Environment and Land Court, Nairobi
Nairobi ELC Case No. 693 of 2016
Jurisdiction invoked
Article 159(2)(e) of the Constitution; Sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9); Rules 4 and 5(2)(b) of the Court of Appeal Rules 2022

Relief refused

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None of the orders sought was refused; the preliminary objection challenging jurisdiction was not upheld

The Court exercised its unfettered discretion under Rule 4 and allowed the motion as prayed

p. 3

Costs

The costs of this motion shall abide the outcome of the intended appeal.

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. 3Nature of Rule 4 discretion
In the instant matter however, the same was lodged on 2nd May 2024, a delay of 2 days which from the circumstances of this case I do not consider to be inordinate.
p. 3Length of delay
Accordingly, the applicants’ motion dated October 9, 2024, is merited and the same is hereby allowed as prayed. The applicants Notice of Appeal dated May 2, 2024 and lodged in Court on the same day shall be deemed to have been filed within time.
p. 3Final orders
The applicants shall proceed to serve the same upon the respondent within 7 days from the date of this ruling and further file the appeal within a period of 30 days from the date of this ruling failure to which these orders shall stand vacated.
p. 3Conditional final orders
The costs of this motion shall abide the outcome of the intended appeal.
p. 4Costs

Issues in the judgment

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minor

Paragraph numbering is duplicated: two successive passages are both numbered 13, the first containing the Rule 4 principles discussion

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, "Kukam Limited & another v Odundo (Civil Application E521 of 2024) [2025] KECA 1202 (KLR)", Case Analysis (2025). Rule 4 application dated 9th October 2024 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1202/eng@2025-07-04

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