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Court of AppealDismissedCivil Application (extension of time motion dated 21st June 2023)· [2024] KECA 378 (KLR)

Nextgen Office Suites Limited v George Kanyi & 6 others

Court of Appeal of Kenya
28 March 2024
1,038 words in judgment
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The bottom line

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The Court of Appeal refused Kenya Safari developer's late appeal because months of unexplained delay and weak excuses don't earn extra time to appeal.

What this practically means

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Executive summary

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This is a single-judge decision of the Court of Appeal (Kiage, JA) delivered at Nairobi on 28th March 2024 on a notice of motion dated 21st June 2023. The applicant, Africa Safari Developers Limited, sought extension of time to lodge a notice of appeal against a ruling of the Environment and Land Court (Angote, J.) delivered on 16th March 2023, the time having lapsed on 31st March 2023. The applicant attributed its default to a change of advocates, internal corporate processes, and an initial, later-withdrawn decision to seek review of the ruling rather than appeal. The respondents opposed, arguing the application was res judicata because a prior application (Civil Application No. 162 of 2023) had been dismissed by Laibuta, JA on 9th June 2023. Kiage, JA rejected the res judicata objection, holding that the earlier ruling had struck out the application on the jurisdictional ground that no notice of appeal had been lodged under Rules 77 and 79, and therefore no determination on the merits had occurred. On the merits, applying the well-known factors from Leo Sila Mutiso v Hellen Wangari Mwangi and Nicholas Kiptoo Arap Korir Salat v IEBC, the judge found the delay inordinate and implausibly explained, noting a candour deficit and the applicant's pursuit of mutually exclusive processes while enjoying able counsel. The application was dismissed with costs. The respondents' objection that the applicant had pursued review and could not now appeal was noted but the application failed primarily on the inadequacy of the explanation for the delay.

Key legal issues

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01

Res judicata vis-à-vis the earlier Rule 4 application dismissed on 9th June 2023

Holding

The application was not res judicata because the earlier application was struck out on a jurisdictional point (absence of a notice of appeal) rather than determined on the merits of the extension of time sought

Reasoning

Laibuta, JA's ruling of 9th June 2023 struck out the applicant's prior application for want of a notice of appeal in compliance with Rules 77 and 79. Since no merits determination was made, there was no 'judicata'. The single judge therefore proceeded to the merits of the fresh application.

p. 2
02

Whether extension of time should be granted

Holding

Refused. The delay was inordinate and the explanation - change of advocates, corporate processes, and an initial decision to seek review - was implausible and marked by a candour deficit

Reasoning

The court reiterated the Sila Mutiso and Salat factors: length of delay, reasons for delay, arguability of the intended appeal and prejudice to respondents. The applicant had pursued mutually exclusive processes (review and appeal) while enjoying able counsel, and respondents had repeatedly been put to respond. The explanation did not amount to a plausible account, so the unfettered discretion could not be exercised favourably.

p. 3

Legal principles established

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  • Extension of time under Rule 4 of the Court of Appeal Rules is not granted as of right; the single judge exercises a discretion weighing the length of and explanation for the delay, the chances of the appeal succeeding, and prejudice to respondents

Court orders

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  1. 1.The motion dated 21st June 2023 seeking extension of time to file and serve a notice of appeal was dismissed with costs
On appeal from
Environment and Land Court
null
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (single judge jurisdiction to extend or enlarge time)

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, "Nextgen Office Suites Limited v George Kanyi & 6 others", Case Analysis (2024). Civil Application (extension of time motion dated 21st June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/378/eng@2024-03-28

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