Kenya National Highways Authority v Motrex Limited & 6 others (Civil Appeal (Application) E024 & E025 of 2024 (Consolidated)) [2024] KECA 1758 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a publisher to appeal 26 days late, ruling the delay was excusable and its right of appeal shouldn't be lost.
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 file the notices of appeal out of time
- 2.Whether the notices of appeal filed on 12th March 2024 should be deemed properly on record
- 3.Whether the delay of 26 days was inordinate and satisfactorily explained
- 4.Whether the supporting affidavit sworn by counsel for the applicant was incompetent for deposing to contentious matters
Key legal issues
#Whether the 26-day delay in filing the notices of appeal was inordinate and excusable
The delay was not inordinate and the explanation - waiting for the judgment to advise the applicant and a technical hitch with the de-activated e-portal - was reasonable
The court applied the Salat principles. Although a party need not await a judgment before filing a notice of appeal, the wait here was understandable given the need for an informed decision and the e-portal being de-activated. Balancing the parties' interests, the respondents were not specific on prejudice, while refusal would defeat the applicant's undisputed right of appeal.
Whether the supporting affidavit sworn by counsel for the applicant was incompetent
The affidavit was competent because counsel swore only to formal, non-contentious matters within her personal knowledge
Rule 9 of the Advocates (Practice) Rules bars an advocate from deposing where they may be required as a witness, but contains a proviso allowing affidavits on formal or non-contentious matters. The court examined the affidavit and found the facts deposed to were formal and within counsel's personal knowledge, so the challenge failed.
Whether the applicant should be granted leave to appeal out of time
Leave was granted; the notices of appeal filed on 12th March 2024 were deemed properly on record, to be filed and served within 21 days
The court found the delay not inordinate, the reasons reasonable, no significant prejudice to the respondents (the judgment below contained only a declaratory order and monetary award), and that the memorandum of appeal raised pertinent issues warranting determination on appeal. The applications were therefore allowed with costs abiding the appeals.
Legal principles established
#- Extension of time is an equitable, discretionary remedy available only to a deserving party, and the party seeking it bears the burden of laying a basis to the satisfaction of the court
- The factors governing extension of time include length and explanation of delay, prejudice to respondents, whether the application was brought without undue delay, and, in appropriate cases, public interest
- Under Rule 77(2) of the Court of Appeal Rules, a notice of appeal must be lodged within fourteen days after the date of the decision
- A litigant need not wait for a written judgment before filing a notice of appeal
- An advocate may swear an affidavit on formal or non-contentious matters of fact in a matter in which they act, per Rule 9 of the Advocates (Practice) Rules
Court orders
#- 1.The applications dated 12th March 2024 are allowed
- 2.Leave be and is hereby granted to the applicant to file notice of appeal out of time
- 3.The notice of appeal filed in each respective application on the 12th March 2024 be and are hereby deemed to be properly on record
- 4.The applicant shall file and serve the notice of appeal dated 12th March 2024 within 21 days of the date of this ruling
- 5.The costs of this applications shall abide the outcome of the appeals
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Superior court below (not named in the judgment)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (inherent discretionary power to extend time), read with rules 1(2), 42(1) and 43(1) of the Court of Appeal Rules
- Consolidated with
- Two separate applications arising from two different judgments, consolidated by the Court
Relief refused
#Objection to the competency of the supporting affidavit sworn by counsel
The court found the counsel deposed only to formal matters within her personal knowledge
Costs
The costs of this applications shall abide the outcome of the appeals.
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 applications dated 12th March 2024 are allowed
Leave be and is hereby granted to the applicant to file notice of appeal out of time
The notice of appeal filed in each respective application on the 12th March 2024 be and are hereby deemed to be properly on record
The costs of this applications shall abide the outcome of the appeals.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.
An applicant need not wait for the judgment before filing a notice of appeal.
Issues in the judgment
#The judgment does not name the parties, the case numbers, or the superior court from which the appeals are intended; the applicant is referred to only generically
The judgment refers to the final orders of the superior court as a declaratory order and a monetary award without identifying the court or suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Highways Authority v Motrex Limited & 6 others (Civil Appeal (Application) E024 & E025 of 2024 (Consolidated)) [2024] KECA 1758 (KLR)", Case Analysis (2024). Not stated in the judgment (two consolidated applications dated 12th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1758/eng@2024-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.