Pioneer Plumbers Limited v Morris & Company Limited & another (Civil Appeal (Application) 139 of 2016) [2025] KECA 1755 (KLR)
The bottom line
#Kenya's Court of Appeal granted Pioneer Plumbers extra time to try to revive an appeal dismissed for want of prosecution, finding an 8-day delay acceptable.
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 applicant should be granted leave to extend time for filing the application seeking reinstatement of the appeal dismissed for want of prosecution
- 2.Whether the delay of about 8 days in filing the application was inordinate
- 3.Whether the reasons advanced for the delay were plausible
- 4.Whether the respondents would suffer prejudice if the application were allowed
Key legal issues
#Whether the 8-day delay in filing the application was inordinate
An 8-day delay, where the 30-day period under Rule 102 expired on 17th October 2018 and the motion was filed on 25th October 2018, was not inordinate.
The Court measured the delay against the 30-day filing window imposed by Rule 102(1) and (3) following the dismissal of the appeal on 17th September 2018. Since the motion was filed on 25th October 2018, only about 8 days beyond the deadline, the Court found the delay short and not inordinate, satisfying the first factor in the Rule 4 test.
Whether the reasons for the delay were plausible
Counsel's travel to London for an urgent matter, coupled with communication with opposing counsel who consented to an extension, constituted a reasonable and plausible explanation.
The applicant's advocate deposed that he travelled to London from 6th September to 5th October 2018, had instructed counsel to hold his brief and seek an adjournment and extension, and had communicated with the 1st respondent's counsel who agreed. The Court found these circumstances sufficient to explain the delay to its satisfaction.
Whether the respondents would suffer prejudice
No prejudice would be suffered, as the respondents had not responded to the motion despite service.
The Court noted that the respondents were served with the application on 26th October 2018 and with a hearing notice via email, yet filed no response and made no appearance. Their silence meant the fourth factor of the Rule 4 test weighed in the applicant's favour.
Legal principles established
#- The decision whether or not to extend time under Rule 4 is discretionary and is governed by the four-fold considerations of length of delay, reason for delay, arguability of the appeal and prejudice to the respondent.
Court orders
#- 1.The motion dated 25th October 2018 was allowed in terms of prayer 4 only: leave granted to extend time and the application deemed as duly filed on time
- 2.The prayer for setting aside the orders of 17th September 2018 dismissing the appeal was not dealt with, being reserved for a full bench
- 3.The applicant to file the application for reinstatement of the appeal within 10 days from the date of the ruling, failing which these orders shall stand vacated
- 4.Costs of the motion to abide the outcome of the reinstatement application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya (order dismissing Civil Appeal No. 139 of 2016 for want of prosecution)
- Civil Appeal Number 139 of 2016
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 1(2), 1(3), 3, 4, 42, 43, 100, 102(1), (2) and (3) of the Court of Appeal Rules 2010, and Articles 10, 19, 20, 21, 47, 159(1) and (2) of the Constitution of Kenya 2010
Relief refused
#Setting aside of the order of 17th September 2018 dismissing Civil Appeal No. 139 of 2016 for want of prosecution
A Single Judge has no jurisdiction to make a definitive determination on that prayer; it is reserved for the full Court on a reinstatement application
Costs
The costs of this motion shall abide the outcome of the application referred to in paragraph 21 above. It is so ordered.
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.
It is now well settled that the decision whether or not to extend time for appealing is essentially discretionary.
Accordingly, the applicant's motion dated 25th October 2018, is merited and the same is hereby allowed in terms of prayer 4 only and the instant motion shall be duly deemed as having been filed on time.
The applicant shall proceed to file the application for reinstatement of the appeal within 10 days from the date of this ruling failure to which these orders shall stand vacated.
Issues in the judgment
#The respondents' hearing notice is stated to have been served on 26th September 2025, more than a month after the judgment date of 24th October 2025, an apparent internal date inconsistency.
Rule 102 is stated to require filing within 30 days of the dismissal given on 17th September 2018, but the deadline is computed as 17th October 2018, which is only 30 days if counted as 17th September plus 30 days; the text elsewhere says on or before 16th October 2018.
The recital of the application grounds and prayers attributes the filing date as 25th October 2018 while paragraph 15 computes the deadline as 17th October 2018, an internal discrepancy in the 30-day computation.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pioneer Plumbers Limited v Morris & Company Limited & another (Civil Appeal (Application) 139 of 2016) [2025] KECA 1755 (KLR)", Case Analysis (2025). Civil Application (motion dated 25th October 2018) arising from Civil Appeal Number 139 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1755/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.