Base Titanium Limited v County Government of Mombasa & another
The bottom line
#Court allowed late filing due to opponent's lawyer change, applying established extension principles.
What this practically means
#The Supreme Court allowed an applicant to file a supplementary appeal record 48 days late. The delay happened because the other side changed lawyers, making it hard to agree on the court order. The court found this explanation reasonable and gave 14 more days to file. This shows that delays caused by an opponent's actions can be excused.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether on the basis of the supporting written submissions of the 1st Respondent, the Applicant herein, has made a compelling case for this Court to exercise discretion in its favour and thereby grant the orders sought
Key legal issues
#Whether the applicant has made a compelling case for enlargement of time to file a Supplementary Record of Appeal out of time.
The application is allowed; the delay of forty-eight days was adequately explained by the applicant's inability to obtain approval of the draft order due to the 1st respondent's change of advocates.
The Court considered the applicant's explanation that the delay in extracting the formal order from the Court of Appeal was caused by the 1st respondent's change of advocates, which occurred after the notice of appeal was filed. The applicant sent a draft order to the previous advocates, who failed to respond, and the new advocates only filed a notice of change two days before the 15-day period for filing a supplementary record without leave expired. The Court found this explanation satisfactory and exercised its discretion to allow the application, applying the principles from Nicholas Kiptoo Korir Salat and Hassan Nyanje Charo.
Legal principles established
#- Extension of time requires a satisfactory explanation for the delay.
- A delay caused by the opposing party's change of advocates can be a valid reason.
- The court considers the length of delay and any prejudice to the other side.
- The principles from Nicholas Kiptoo Korir Salat and Hassan Nyanje Charo govern such applications.
- The applicant must show diligence in pursuing the appeal.
- Costs may be ordered to follow the outcome of the main case.
Court orders
#- 1.The Application dated 28th September, 2018 is hereby allowed.
- 2.The applicant shall file its Supplementary Record of Appeal within 14 days from the date hereof.
- 3.Costs shall be in the cause.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Civil Appeal No. 69 of 2017
- Jurisdiction invoked
- Rules 21(1) and 53 of the Supreme Court Rules, 2012; Sections 21(2) of the Supreme Court Act, 2011
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 forty-eight day delay, has been explained to our satisfaction by the Applicant. We are persuaded that, the inability by the Applicant, to obtain the approval of its Draft Order timeously, compounded by the change of advocates by the 1st Respondent, adequately explain the delay in filing the Supplementary Record of Appeal.
The Application dated 28th September, 2018 is hereby allowed.
The applicant shall file its Supplementary Record of Appeal within 14 days from the date hereof.
Costs shall be in the cause.
Key timeline
#Practical implications
#Use opponent's lawyer change as delay excuse
When your opponent changes advocates, document the difficulty in obtaining consent on draft orders. This case shows the court accepts such delays as reasonable. File your extension application promptly and explain the sequence of events clearly to strengthen your case.
Monitor legal timelines despite opponent changes
If you are involved in an appeal, be aware that your opponent's change of lawyers can affect deadlines. You may need to seek court permission if you miss a filing deadline due to their actions. Keep records of all communications to show the delay was not your fault.
Late filing possible if opponent causes delay
If you miss a court deadline because the other side changed lawyers and you couldn't get their approval on documents, you can ask the court for more time. Explain the situation clearly. The court may grant an extension if your reason is genuine and you act quickly.
Frequently asked questions
#What is extension of time in Kenya Supreme Court?+
Extension of time allows a party to file a document after the deadline has passed. The court grants it if there is a good reason for the delay, such as the opponent changing lawyers. You must apply promptly and explain why you were late.
How to file a supplementary record of appeal late in Kenya?+
You need to file an application for enlargement of time at the Supreme Court. Explain the reason for the delay, like the opponent's change of advocates. The court will decide based on principles from cases like Nicholas Kiptoo Korir Salat. If granted, you get a new deadline.
Can opponent's change of lawyers delay my appeal in Kenya?+
Yes. If the opponent changes lawyers, it can slow down agreeing on court orders. The Supreme Court accepted this as a valid reason for a 48-day delay. You should document the change and show you tried to get approval from the old and new lawyers.
What are the principles for extension of time in Kenya?+
The key principles come from Nicholas Kiptoo Korir Salat and Hassan Nyanje Charo cases. They require a satisfactory explanation for delay, no prejudice to the other side, and that the applicant acts diligently. The court has discretion to grant or refuse based on the facts.
Later judgments citing this (9)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- H Young & Co (EA) v County Government of Lamu (Civil Appeal E033 of 2021) [2024] KECA 359 (KLR)[2024] KECA 359 (KLR)22 Mar 2024applied
- Kenya Agricultural Research Institute v Kariuki & 16 others[2023] KESC 25 (KLR)21 Apr 2023followed
- Muthuuri & 4 others v Attorney General & 2 others[2022] KESC 74 (KLR)4 Nov 2022followed
- Institute for Social Accountability & another v National Assembly & 5 others[2022] KESC 39 (KLR)8 Aug 2022followed
- Humphrey Nyaga Thomas & 25 others v Kenyatta University [2020] KEELRC 12 (KLR)[2020] KEELRC 12 (KLR)10 Dec 2020
- Ferdinand Ndungu Waititu Babayao v Republic[2020] KESC 11 (KLR)23 Sept 2020followed
- Geo Chem Middle East v Kenya Bureau of Standards[2020] KESC 12 (KLR)23 Sept 2020
- William Olotch v Pan Africa Insurance Co. Limited[2020] KESC 16 (KLR)4 Sept 2020followed
- Mutegi Mugwetwa v Chief Officer Lands, Physical Planning, Housing, Urban Development, Environment and Natural Resources & 4 others [2020] KEELC 3731 (KLR)[2020] KEELC 3731 (KLR)4 Feb 2020
Cite this brief
#Cite this brief
Caselaw, "Base Titanium Limited v County Government of Mombasa & another", Case Analysis (2019). Petition 22 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/9/eng@2019-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.