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Court of AppealDismissedCivil Application (Malindi) arising from ELC Case No. 22 of 2016; related Civil Application No. E001 of 2023 and E010 of 2024

Solian Investment Limited v KSC International Limited In Receivership (Formerly known as Kundan Singh Construction) & 6 others (Civil Application E034 of 2024) [2025] KECA 1533 (KLR)

Court of Appeal of Kenya
3 October 2025
3,072 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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The Court of Appeal refused Solian Investment more time to file its appeal, ruling the company failed to diligently track its own case progress.

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 Malindi (S. Gatembu Kairu, JA) on an application dated 13th December 2024 under Rule 4 of the Court of Appeal Rules by Solian Investment Limited seeking extension of time to institute an appeal against the judgment of the Environment and Land Court (Olola, J) of 19th October 2022, which dismissed its suit challenging the creation of Title No. Mtondia/Roka/11 as encroaching on its leasehold title. The applicant's Notice of Appeal, filed a day late, had been deemed properly filed by a ruling of the Court (Murgor, JA) on 8th March 2024, giving the applicant until 8th May 2024 to lodge the record of appeal. The applicant attributed the delay to its former advocates having already collected the typed proceedings, of which its new advocates were unaware until notified by the ELC Deputy Registrar on 21st August 2024, and to delayed release of pleadings and files. The 1st respondent opposed, contending there was no due diligence and that further delay was prejudicial given its receivership. Applying the Fakir Mohamed and Salat principles, the court held that a perusal of the court file or enquiry of the former advocates would have revealed the position; that mistake of counsel is not an automatic excuse; and that the delay was not satisfactorily explained. The application was dismissed with costs to the 1st respondent.

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 has satisfied the Rule 4 principles for extension of time to institute an appeal, particularly whether the delay has been satisfactorily explained
  2. 2.Whether mistakes or inaction of the applicant's advocates excuse the delay
  3. 3.Whether the 1st respondent would suffer prejudice if the extension is granted

Key legal issues

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01

Extension of time under Rule 4 of the Court of Appeal Rules

Holding

Extension of time is an equitable remedy, not a right; the applicant bears the burden of explaining the delay to the court's satisfaction.

Reasoning

The court applied the well-established Rule 4 factors: length of and reason for delay, chances of the appeal succeeding, prejudice to the respondent, effect on public administration, and importance of compliance with time limits. Citing Salat v IEBC, it held that the applicant must lay a basis to the court's satisfaction, that each case is considered on its own facts, and that public interest is relevant.

p. 4
02

Whether the delay was excusably explained

Holding

No: the applicant knew by 30th January 2023 that proceedings had been requested, and due diligence would have revealed they had been collected in December 2022.

Reasoning

The new advocates applied afresh for proceedings on 14th March 2024 without perusing the court file or enquiring of the former advocates. Even after learning on 21st August 2024 and collecting proceedings on 3rd September 2024, the application was filed on 13th December 2024 without adequate explanation; unavailability of pleadings did not prevent earlier filing, as prior applications showed.

p. 5
03

Mistake of counsel as a ground for extension

Holding

Mistake of counsel is not an automatic excuse for delay.

Reasoning

Relying on Sakari v Anyumba, the court held that a case belongs to the litigant, not counsel, so counsel's inaction cannot by itself justify extension. The applicant's analogy to authorities holding that mistakes of former counsel should not be visited on a client did not avail it, given the absence of due diligence over an extended period.

p. 6
04

Prejudice to the respondent

Holding

Further delay would prejudice the 1st respondent, which is in receivership, in a suit commenced in 2016.

Reasoning

The court noted the suit's age since 2016 and the 1st respondent's receivership, accepting that prolonged delay in concluding the matter was prejudicial. This factor weighed against extension alongside the unexplained delay and the importance of compliance with time limits.

p. 6

Legal principles established

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  • Mistake of counsel is not an automatic reason to excuse delay, as the case belongs to the litigant and not to counsel
  • Although the Rule 4 discretion is unfettered, it must be exercised judicially on established relevant factors
  • A litigant whose advocates have requested proceedings must exercise diligence, by perusing the court file or enquiring of former advocates, to establish the status of the request

Court orders

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  1. 1.The application dated 13th December 2024 is dismissed
  2. 2.Costs of the application awarded to the 1st respondent

The bench

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

majority

Wrote the judgment

Single judge ruling on an application under Rule 4 of the Court of Appeal Rules for extension of time to institute an appeal; dismissed for lack of due diligence and unexplained delay.

All in all, I am not satisfied that this is a proper case for the Court to exercise its discretion in favour of the applicant. The application fails and is accordingly dismissed with costs to the 1st respondent.p. 6
On appeal from
Environment and Land Court
ELC Case No. 22 of 2016
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time discretion)

Relief refused

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Extension of time to institute the appeal against the ELC judgment of 19th October 2022

The delay was not satisfactorily explained; the applicant and its advocates failed to exercise due diligence, and the 1st respondent would be prejudiced by further delay

p. 6

Costs

Costs of the application awarded to the 1st respondent

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.

Although the Court has unfettered discretion under Rule 4 of the Court of Appeal Rules to extend time, that discretion should be exercised judicially.
p. 4Judicial exercise of Rule 4 discretion
extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court; that the party seeking extension of time has the burden to lay a basis to the satisfaction of the court
p. 4Nature of extension of time
existence of the typed proceedings could have been established by exercise of diligence by the applicant through perusal of the court file or inquiry with the previous advocates
p. 5Due diligence by litigants and advocates
mistake of counsel is not an automatic reason to excuse delay as the case belongs to a litigant and not to his counsel.
p. 6Mistake of counsel
The application fails and is accordingly dismissed with costs to the 1st respondent.
p. 6Final orders

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, "Solian Investment Limited v KSC International Limited In Receivership (Formerly known as Kundan Singh Construction) & 6 others (Civil Application E034 of 2024) [2025] KECA 1533 (KLR)", Case Analysis (2025). Civil Application (Malindi) arising from ELC Case No. 22 of 2016; related Civil Application No. E001 of 2023 and E010 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1533/eng@2025-10-03

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