African China Motor Group Limited v PN Mashru Limited (Civil Appeal (Application) E137 of 2024) [2025] KECA 1542 (KLR)
The bottom line
#The Court of Appeal refused to extend time for a late appeal because the company couldn't explain a nine-month delay or show its appeal had merit.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court should grant leave to the Applicant to appeal out of time against the judgment delivered on 15th March 2024
- 2.Whether the delay of 9 months in filing the Memorandum and Record of appeal was satisfactorily explained
- 3.Whether the appeal had any chances of success and whether the Respondent would suffer prejudice if time was extended
Key legal issues
#Jurisdiction to extend time under rule 4
The Court has discretion, on such terms as it thinks just, to extend time limited by the Rules for the doing of any act
Rule 4 of the Court of Appeal Rules confers on the Court the discretion to extend time whether before or after the doing of the act. The discretion is guided by the principles in Leo Sila Mutiso v Hellen Wangari Mwangi: length of delay, reason for delay, chances of success, and prejudice to the respondent.
Effect of failure to bespeak proceedings and obtain a certificate of delay
Without a letter requesting proceedings copied to the respondent and a certificate of delay, the time for preparing proceedings is not excluded and the Record should have been filed within 60 days of the Notice of appeal
The proviso to rule 84 excludes from the computation of time the period certified by the registrar as required for preparation and delivery of proceedings, but only where the application for proceedings was made within 30 days in accordance with sub-rule two. The applicant adduced no bespeaking letter and no certificate of delay, so the exclusion did not apply.
Whether the delay was explained
The explanation - unforeseeable reasons for not collecting ready proceedings and missing documents from an old court file - was insufficient, with no evidence of what was missing or registry communications
The court found the explanation far from sufficient: it was unclear what the unforeseeable circumstances were; no indication was given of what documents were missing or their importance; and no communication with or from the Registry supported the claim of missing documents. A delay of 9 months was thus unexplained.
Chances of success and prejudice
With no draft Memorandum of appeal filed, the Court could not discern any likelihood of success, and the Respondent would be prejudiced by continued denial of the fruits of its judgment
The applicant filed no draft Memorandum of appeal, leaving no grounds upon which the merits could be assessed. Combined with what the court described as an unenthusiastic and lethargic prosecution of the motion, extending time would prejudice the respondent who would continue to be denied the fruits of its judgment.
Legal principles established
#- Where an applicant for extension of time does not produce a letter bespeaking proceedings served on the court and the respondent, nor a certificate of delay, the time for preparation of proceedings cannot be excluded from computation of the period of delay, and the Record of appeal must be filed within 60 days of filing the Notice of appeal
- An applicant for extension of time must demonstrate: the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent
Court orders
#- 1.The Notice of motion dated 6th December 2024 is dismissed
- 2.Costs of the application awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya, Mombasa
- Mombasa Civil Suit No. 6 of 2009
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2010
Relief refused
#Leave to appeal out of time against the judgment of 15th March 2024
The Applicant failed to satisfy the requirements of rule 4; the delay was not satisfactorily explained and no draft Memorandum of appeal was filed
Extension of time within which to file and serve the Memorandum of appeal and Record of appeal
No letter bespeaking proceedings or certificate of delay was produced; the explanation of missing documents and unforeseeable circumstances was insufficient; the Respondent would suffer prejudice by being denied the fruits of its judgment
Costs
Costs of the application awarded to the Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
…the decision whether or not to extend time is discretional. The Court in deciding whether to grant an extension of time takes into account the following matters: first, the length of the delay; second, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.
…the computation of the 60-day window within which he should lodge the Record of appeal is suspended during the typing of proceedings provided the appellant serves the letter bespeaking proceedings upon the court and the respondent. A certificate of delay is usually issued in such cases, specifying the time taken for the proceedings to be typed, for purposes of exclusion of the same during computation.
since there is no letter bespeaking a request for proceedings, and nor has a certificate of delay been produced, it becomes clear that the time for preparation of the proceedings cannot be excluded from the period of delay, and therefore, as required by rule 84, the Applicant should have filed the Record within 60 days from the date of filing the Notice of appeal, which it failed to do.
In sum, the Applicant having failed to satisfy the requirements of rule 4, I decline to exercise my discretion to extend time for filing the Memorandum and Record of appeal. Accordingly, the Notice of motion dated 6th December 2024 is dismissed with costs to the Respondent.
Issues in the judgment
#The judgment refers to the application as brought under the Court of Appeal Rules, 2010, while the respondent argued the motion was defective for being brought under the repealed 2010 rules instead of the 2020 rules; the court does not resolve this question explicitly
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "African China Motor Group Limited v PN Mashru Limited (Civil Appeal (Application) E137 of 2024) [2025] KECA 1542 (KLR)", Case Analysis (2025). Civil Application (Notice of Motion dated 6th December 2024) arising from Mombasa Civil Suit No. 6 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1542/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.