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Court of AppealAllowedCivil Appeal No. E150 of 2024

Chande v Kenya Ports Authority (Civil Application E105 of 2024) [2025] KECA 753 (KLR)

Court of Appeal of Kenya
9 May 2025
1,250 words in judgment
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·~5 min to read original · ~4 min brief

The bottom line

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The Court of Appeal in Mombasa gave an appellant extra time to file its appeal papers, finding the roughly sixty-day delay explained and harmless to the other side.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Mombasa (F. Tuiyott, JA) on a notice of motion dated 18th September 2024 seeking extension of time to file and serve a memorandum and record of appeal against the judgment of Monica Mbaru, J. delivered on 25th January 2024 in Mombasa ELRC Cause No. E087 of 2023, and that the documents already filed in Civil Appeal No. E150 of 2024 be deemed properly filed. The respondent opposed, arguing that the notice of appeal was deemed withdrawn under rule 85 for failure to institute the appeal within sixty days, and that the letter bespeaking certified proceedings was never served as required by rule 84(2). The court found the notice of appeal was filed and served within time under rule 77. However, because the bespeaking letter dated 4th March 2024 was not served on the respondent, the applicant could not invoke the proviso to rule 84(1) to exclude the time taken to prepare certified proceedings, so the appeal ought to have been filed by about 11th April 2024. Nonetheless, applying the Fakir Mohamed v Joseph Mugambi principles to its rule 4 discretion, the court held the delay of roughly sixty days beyond the deadline was not inordinate, was explained by registry difficulties in releasing the certified copies, and that no prejudice to the respondent was demonstrated. The application was allowed in terms of prayer 2, with costs in the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court should grant an extension of time to file and serve the memorandum of appeal and record of appeal out of time
  2. 2.Whether the memorandum and record of appeal already filed should be deemed properly filed
  3. 3.Whether there was a valid notice of appeal on record and whether the proviso to rule 84(1) applies to exclude the period taken to prepare certified proceedings

Key legal issues

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01

Validity and timeliness of the notice of appeal

Holding

The notice of appeal dated 6th February 2024, lodged at the ELRC Mombasa Registry on 9th February 2024 and served on 12th February 2024, was filed and served within the fourteen days required by rule 77; the respondent's contention that it was deemed withdrawn under rule 85 was rejected.

Reasoning

The court examined the dates of lodgment and service against rule 77's fourteen-day requirement and found the notice compliant. It also noted the applicant's assertion that the notice was uploaded on the e-filing system on 7th February 2024. Accordingly the argument that no valid notice existed on account of rule 85 failed.

p. 2
02

Effect of non-service of the letter bespeaking certified proceedings

Holding

Because the letter dated 4th March 2024 bespeaking certified copies was not copied to or served on the respondent, the applicant could not rely on the proviso to rule 84(1) to exclude the period taken to prepare the proceedings.

Reasoning

Rule 84(2) conditions reliance on the proviso on a written application for copies served on the respondent. The court accepted the respondent's evidence that the letter was not served, so the sixty-day period from lodgment of the notice ran without exclusion, expiring about 11th April 2024. The non-service was an oversight that 'makes the situation look much the worse'.

p. 3
03

Whether the delay in filing the record of appeal was inordinate and whether extension of time should be granted

Holding

The delay, though substantial (the appeal was filed about sixty days after the computed deadline of 11th April 2024), was held not inordinate and was explained; no prejudice to the respondent was demonstrated, so extension was granted in terms of prayer 2.

Reasoning

Applying the Fakir Mohamed factors, the court weighed the explanation (inability to retrieve certified copies from the registry until 29th June 2024), the absence of demonstrated prejudice, and the overall circumstances. Despite the inexcusable oversight in not serving the bespeaking letter, the discretion was exercised in the applicant's favour.

p. 3

Legal principles established

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  • The discretion under rule 4 of the Court of Appeal Rules to extend time is unfettered but must be exercised judiciously, guided by the Fakir Mohamed principles (delay, reasons, chances of success, prejudice, public administration, compliance with time limits and other relevant factors).
  • An appellant cannot benefit from the proviso to rule 84(1) excluding the time taken to prepare certified proceedings unless the letter bespeaking those proceedings was in writing and served on the respondent as required by rule 84(2).
  • Where an appeal is ultimately filed within a period the court considers not inordinate, and the delay is explained and no prejudice to the respondent is shown, extension of time may be granted notwithstanding procedural lapses.

Court orders

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  1. 1.The application dated 18th September, 2024 is allowed in terms of prayer number 2 (extension of time to file and serve the memorandum of appeal and record of appeal, which are deemed properly filed)
  2. 2.Costs shall be in the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court, Mombasa
Mombasa ELRC Cause No. E087 of 2023
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time to file memorandum and record of appeal)

Quotable passages

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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 application dated 18th September, 2024 is therefore allowed in terms of prayer number 2. Costs shall be in the appeal.
p. 3Final orders granting extension of time
Given the overall circumstances here, the Court finds that the delay is not inordinate and has been explained.
p. 3Assessment of delay under rule 4
However since the letter bespeaking certified proceedings and judgment was never served upon the respondent, the applicant cannot benefit from exclusion of that period courtesy of the proviso to rule 84(1).
p. 3Service requirement for reliance on the proviso to rule 84(1)

Issues in the judgment

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minor

The date of filing of the notice of appeal is stated inconsistently - the affidavit describes it as filed on 9th February 2024, while a further affidavit says it was uploaded on the e-filing system on 7th February 2024, and the notice itself is dated 6th February 2024; the court resolved this by finding lodgment on 9th February 2024.

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, "Chande v Kenya Ports Authority (Civil Application E105 of 2024) [2025] KECA 753 (KLR)", Case Analysis (2025). Civil Appeal No. E150 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/753/eng@2025-05-09

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