Kenya Power & Lighting Company Ltd v Kenafric Diaries Manufacturers Ltd (Civil Appeal (Application) E464 of 2025) [2026] KECA 954 (KLR)
The bottom line
#Kenya's Court of Appeal allowed Kenya Power to file its appeal record late, ruling that registry delays—not party fault—justify extensions of time.
What this practically means
#Executive summary
#Key legal issues
#Exercise of discretion to extend time under Rule 4 of the Court of Appeal Rules, 2022
The delay in filing the supplementary record was not deliberate but arose from registry-related constraints in obtaining the certificate of delay; the explanation was reasonable and excusable and the Applicant acted diligently.
The court reaffirmed the settled Mutiso factors: length of delay, reasons for delay, chances of the appeal succeeding, and prejudice to the respondent. The Deputy Registrar's refusal to issue the certificate of delay until after sixty days, despite follow-up letters, was administrative and beyond the Applicant's control. The Respondent filed no replying affidavit or submissions and demonstrated no prejudice, so the interests of justice favoured granting leave.
Whether omission of a draft Memorandum of Appeal from a Rule 4 application is fatal
The omission of a draft Memorandum of Appeal is not fatal where the record already on file contains the pleadings and grounds of appeal from which the Court can discern the intended issues.
The Court held that while a draft Memorandum of Appeal ordinarily assists in assessing arguability, the existing record contained the pleadings and grounds of appeal, including complaints about the Judge's failure to ascertain instruction fees and disregard of Schedule 6 Section 1 of the Advocates Remuneration Order. From that material the Court could discern bona fide and arguable questions, and in any event the merits of the grounds would not be determined at this stage.
Whether procedural omissions such as an omitted certificate of delay are curable
The omission of the certificate of delay is curable under Rule 90, which permits filing of a supplementary record of appeal to include omitted documents.
Counsel relied on Baobab Beach Resort v Duncan Muriuki and Landbank Real Estate Investment Trust Ltd v Standard Chartered Bank Kenya Ltd, where the Court held procedural omissions curable in furtherance of substantive justice. The certificate of delay was characterized as a crucial document for the proper determination of the appeal, and its inclusion via a supplementary record serves substantive justice under Article 159.
Legal principles established
#- The discretion under Rule 4 to extend time is unfettered but must be exercised judicially, guided by the length of and reasons for delay, chances of the appeal succeeding, and prejudice to the respondent.
- An arguable appeal need not necessarily succeed; it is one that ought to be argued fully before the Court.
Court orders
#- 1.Time is extended as requested.
- 2.Leave granted to the Applicant to file a supplementary record of appeal out of time.
- 3.The draft supplementary record of appeal annexed to the application deemed as duly filed upon payment of the requisite court fees.
- 4.Costs of the application to abide the outcome of the appeal.
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9; Rules 4, 43, 44, 45, 49 and 90 of the Court of Appeal Rules, 2022; Article 159 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Power & Lighting Company Ltd v Kenafric Diaries Manufacturers Ltd (Civil Appeal (Application) E464 of 2025) [2026] KECA 954 (KLR)", Case Analysis (2026). Not stated in the judgment (Civil Application, Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/954/eng@2026-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.