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Court of AppealDismissedMombasa Court of Appeal No. E011 of 2020 (application dated 5th February 2025)· [2025] KECA 1583 (KLR)

Stephen (Suing as the legal Representative of the Estate of Stephen Munyao Kini (Deceased)) v Gulf Stream Investment Limited (Civil Application E007 of 2025) [2025] KECA 1583 (KLR)

Court of Appeal of Kenya
3 October 2025
GNG. W. Ngenye-Macharia
2,458 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a bid to file a late cross-appeal because a three-year, unexplained delay and a disproven missing-file claim showed the application lacked good faith.

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 by Ngenye-Macharia, JA, on a notice of motion seeking extension of time to file a notice of appeal and memorandum of cross appeal against a judgment of the Employment and Labour Relations Court at Mombasa delivered on 13th December 2019 in ELRC Cause No. 950 of 2016. The applicant, the legal representative of a deceased respondent, had been substituted into the appeal by order of 6th December 2024. She attributed the delay to a missing court file, said to have resurfaced on 29th January 2024. The respondent countered that she obtained letters of administration ad litem on 16th February 2021 but waited until 29th February 2024 to seek substitution, and that the appeal had been the subject of repeated case management appearances at which she was represented. The judge applied the settled extension-of-time principles: length of delay, reasons for delay, possible chances of success and prejudice. He found the delay inordinate and unexplained, noting the contradiction between the claim of a missing file and the applicant's participation in case management, and held that the substitution order was consented to rather than decided on merit, so it did not validate the explanation. The judge also held that requests for reconstruction of a court file belong before the courts below, since the appellate record is compiled from the lower courts' documents. The application was dismissed as an afterthought, with costs to the respondent.

Key legal issues

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01

Whether extension of time should be granted for filing a notice and memorandum of cross appeal

Holding

Refused. The delay was inordinate, the reasons proffered were contradictory and unsubstantiated, and the application was an afterthought.

Reasoning

The judge restated the settled principles for extension of time: length of delay, reasons for delay, chances of success and prejudice. The grant ad litem issued on 16th February 2021 but substitution was only sought on 29th February 2024, and the extension application only in February 2025. The claim that the file was missing was contradicted by case-management appearances. The substitution application was consented to, not decided on merit, so it did not validate the explanation. Equity requires clean hands.

p. 5
02

Whether the court file was missing as alleged by the applicant

Holding

Rejected. The record showed the appeal was registered and came up for case management several times between 6th November 2023 and 5th November 2024 with the applicant represented.

Reasoning

The CTS extract showed the appeal registered on 23rd October 2020 and slated for mention on several occasions, with adjournments for the applicant's counsel to confirm substitution. This demonstrated the file existed, undermining the applicant's explanation for the delay. Claims of letters requesting reconstruction were unsupported by evidence and the Rules make no provision for reconstruction.

p. 4
03

Whether a single Judge may assess the merits of the intended cross appeal

Holding

No; that is a preserve of a full bench, and the merits inquiry is prefixed with 'possibly'.

Reasoning

Citing Athuman Nusura Juma v Afwa Mohamed Ramadhan, the single judge clarified the limits of single-judge jurisdiction: merits of an intended appeal are not finally determined at the extension-of-time stage. The discretion is confined to whether the appeal possibly has chances of success.

p. 3

Legal principles established

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  • A single Judge may not determine with finality whether an intended appeal has merits; the merits inquiry in an extension-of-time application is only whether it 'possibly' has chances of success
  • Discretion under Rule 4 of the Court of Appeal Rules is wide but must be exercised judicially, guided by the length of delay, reasons for delay, chances of success and prejudice to the respondent
  • The Court of Appeal Rules 2022 make no provision for reconstruction of a court file; requests for reconstruction of a file should be made before the courts below, since the appellate record is compiled from documents from those courts

Court orders

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  1. 1.The Notice of Motion dated 5th February 2015 seeking extension of time to file a notice of appeal and memorandum of cross appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Limitation of Actions ActSections 27 and 28(1) and (2)
  • Appellate Jurisdiction ActRules 4, 44 and 45
  • Constitution of Kenya, 2010Articles 22(1), 27(1), 48 and 50(1)
  • Court of Appeal Rules, 2022Rule 4
  • Court of Appeal Rules, 2022Rule 95

Cases cited (4)

  • Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission
    (2014) KESC 12 (KLR)
  • Athuman Nusura Juma v Afwa Mohamed Ramadhan
    (2016) KECA 395 (KLR)
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Appeal No. 255 of 1997
  • Paul Wanjohi Mathenge v Duncan Gichane Mathenge
    (2013) KECA 199 (KLR)
On appeal from
Employment and Labour Relations Court, Mombasa
Mombasa ELRC Cause No. 950 of 2016
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022; Sections 27 and 28(1) and (2) of the Limitation of Actions Act; Rules 4, 44 and 45 of the Appellate Jurisdiction Act; Articles 22(1), 27(1), 48 and 50(1) of the Constitution

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, "Stephen (Suing as the legal Representative of the Estate of Stephen Munyao Kini (Deceased)) v Gulf Stream Investment Limited (Civil Application E007 of 2025) [2025] KECA 1583 (KLR)", Case Analysis (2025). Mombasa Court of Appeal No. E011 of 2020 (application dated 5th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1583/eng@2025-10-03

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