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Court of AppealPartially AllowedApplication dated 5th September 2024 (arising from ELC Petition, Judgment of 28th October 2021)

Kenya National Highways Authority v Port Properties Limited & another (Civil Application E090 of 2024) [2025] KECA 1529 (KLR)

Court of Appeal of Kenya
3 October 2025
2,933 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal gave KeNHA a second chance to appeal a Kshs. 768 million land compensation award after explaining filing mix-ups during the pandemic.

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 Mombasa delivered by A. K. Murgor, JA, on 3rd October 2025, determining a motion dated 5th September 2024 by Kenya National Highways Authority (KeNHA) under Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4 and 77(2) of the Court of Appeal Rules. KeNHA sought extension of time, or alternatively that its Notice of Appeal dated 10th November 2021 against a judgment of the Environment and Land Court at Mombasa of 28th October 2021 be deemed properly filed. That judgment, in a petition by Fort Properties Limited, awarded the 1st Respondent Kshs. 242,950,000 compensation, mesne profits of Kshs. 200,000 per month over parcel MN/VI/4929, degazettement, and vacant possession. KeNHA explained that its Notice of Appeal and letter bespeaking proceedings were filed during the Covid-19 pandemic under the newly introduced e-filing system; the stamped Notice could not later be traced. Counsel mistakenly sought extension in the trial court on 15th September 2023, whose dismissal was rendered only on 24th April 2024, and then pursued a successful stay application decided on 21st June 2024. The 1st Respondent opposed, alleging bad faith, delay, non-receipt of the emailed filings, and an outstanding balance of the award. Applying the Leo Sila Mutiso principles, the Court found the delay sufficiently explained, the intended appeal raising fundamental issues, and greater prejudice to the Applicant and the Kenyan taxpayer if extension were refused. The Court extended time, deemed the Notice of Appeal properly filed, directed service within 7 days, lodging of the Record of Appeal under rule 86, and awarded costs in the appeal. The decision is not final on the merits; it is interlocutory and does not disturb the Environment and Land Court's judgment.

Questions the Court framed

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

  1. 1.Whether the delay in filing the application for extension of time has been sufficiently explained
  2. 2.Whether the intended appeal has chances of success
  3. 3.Whether the Applicant has satisfied the requirements of rule 4 of the Court of Appeal Rules to warrant extension of time and deemed filing of the Notice of Appeal

Key legal issues

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01

Extension of time under rule 4 and the governing principles

Holding

The discretion under rule 4 is guided by the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent

Reasoning

The Court adopted the classic principles in Leo Sila Mutiso vs Hellen Wangari Mwangi as the framework for rule 4 applications. It then applied the framework to the facts: the delay was attributed to a filing error during the newly introduced e-filing system during the Covid-19 pandemic, the inability to trace the stamped Notice of appeal, a mistaken application for extension made in the trial court, and the nearly one year the trial court took to render its decision dismissing that application.

p. 4
02

Whether the delay was adequately explained

Holding

The delay from the judgment to the filing of the instant application was sufficiently explained, including the period consumed by the misdirected application in the trial court and the pursuit of stay proceedings

Reasoning

The Court accepted that the Notice of appeal was filed together with the letter bespeaking proceedings during the Covid-19 pandemic when e-filing was new, and that an error may have occurred. The erroneous filing of the extension application in the Environment and Land Court, though showing a lack of familiarity with the Rules, cost the Applicant almost a year awaiting the trial court's ruling. Counsel's engagement in stay-of-execution proceedings, allowed on 21st June 2024, explained the remaining period.

03

Chances of success and balance of prejudice

Holding

The intended appeal raised fundamental issues meriting ventilation, and greater prejudice would befall the Applicant, and the Kenyan taxpayer, if extension were refused

Reasoning

The Court noted the draft memorandum of appeal raised fundamental issues, including the award of mesne profits without proof of occupation and interest contrary to Section 117 of the Land Act. Given the exorbitant sums of over Kshs. 768 million at stake and the contention that payment would cause double payment and unjust enrichment at taxpayers' expense, the Court found greater prejudice to the Applicant than to the 1st Respondent and exercised its discretion in favour of extension.

p. 5

Legal principles established

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  • Under rule 4 of the Court of Appeal Rules the Court may extend time for doing any act authorised or required by the Rules on such terms as it thinks just, whether before or after the time has expired

Court orders

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  1. 1.The Notice of Appeal dated 10th November 2021 to be deemed as properly filed
  2. 2.The Applicant to serve the Notice of Appeal on the Respondents within 7 days from the date of the ruling
  3. 3.The Memorandum and Record of Appeal to be lodged and served in accordance with rule 86 of the Court of Appeal Rules
  4. 4.Costs in the 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 at Mombasa
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4 and 77(2) of the Court of Appeal Rules

Relief refused

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Costs of the application against the Respondents

The Court only provided for costs in the appeal, not the application

p. 6

Costs

Costs in the 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.

All in all, having analysed the material advanced by the Applicant to explain the delay, I am satisfied that it has been sufficiently explained.
p. 5Explanation of delay
In sum, the Applicant having satisfied the requirements of rule 4, I hereby do exercise my discretion to extend time for filing the Notice of appeal, and for the Notice of appeal dated 10th November 2021 to be deemed as properly filed.
p. 6Exercise of discretion
i. the Notice of Appeal dated 10th November 2021 to be deemed as properly filed; ii. the Applicant to serve the Notice of Appeal on the Respondents within 7 days from the date of this ruling;
p. 6Final orders

Issues in the judgment

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minor

The judgment inconsistently dates the Notice of appeal, describing it as dated 10th November 2021 in places and as dated 11th November 2021 elsewhere

minor

The judgment refers to counsel for the Applicant as both Senior Counsel Prof. Mumma and, in describing the Notice of appeal's signatory, appears to omit the surname

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 National Highways Authority v Port Properties Limited & another (Civil Application E090 of 2024) [2025] KECA 1529 (KLR)", Case Analysis (2025). Application dated 5th September 2024 (arising from ELC Petition, Judgment of 28th October 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1529/eng@2025-10-03

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