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Court of AppealDismissedCivil Application (Mombasa ELC Appeal)· [2025] KECA 854 (KLR)

Kenya United Steel Company (2022) Limited v Ahmed & another (Civil Appeal (Application) E141 of 2022) [2025] KECA 854 (KLR)

Court of Appeal of Kenya
7 March 2025
1,113 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a 20-month-delayed application because the applicant never explained when he first learned of the appeal.

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 on a notice of motion dated 11th October, 2024 by the 2nd respondent, Ahmed Mohiddin, seeking leave to file an application to strike out the appellant's record of appeal out of time. The record of appeal, filed on 17th December 2022, followed a notice of appeal lodged on 14th November 2017 against a judgment of A. Omollo J in Mombasa ELC Civil Suit No. 470 of 2011 delivered on 31st October 2017. The 2nd respondent asserted he was never served with the summons in the superior court, the notice of appeal, or the record of appeal. The 1st respondent supported the application, while the appellant opposed it, contending that Rule 86 admits no enlargement of the 30-day period after service and that the 2nd respondent, having never entered appearance below, could not challenge the appeal. Applying the Rule 4 extension-of-time criteria as articulated in Fakir Mohamed v Joseph Mugambi & 2 others, the court held that an applicant's failure to disclose when he first became aware of the notice of appeal or the appeal is fatal, since the court cannot then assess whether the delay in bringing the motion — about 20 months — is excusable or inordinate. The application was dismissed with costs to the appellant.

Key legal issues

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01

Whether the delay in seeking leave to file a striking-out application out of time was excusable

Holding

The application fails because the applicant did not disclose when he became aware of the notice of appeal or record of appeal, so the court cannot assess whether the delay is excusable or inordinate

Reasoning

The court applied the Fakir Mohamed criteria for extension of time. A critical factor is the length of the delay and whether it is explained to the court's satisfaction. The 2nd respondent sought leave roughly 20 months after the record of appeal was filed, yet did not state when he first became aware of the appeal. Without that information the court cannot weigh the delay; the omission is fatal to the application.

p. 3
02

The scope of Rule 86 striking-out applications

Holding

Rule 86 permits a person affected by an appeal to apply to strike out a notice of appeal or appeal at any time on limited grounds, but an application may not be brought more than 30 days after service of the notice of appeal or record of appeal

Reasoning

The court set out the text of Rule 86, including the proviso barring applications brought after the expiry of 30 days from service of the notice of appeal or record of appeal. The appellant contended no room exists to enlarge that time; the court's determination rested instead on the applicant's failure to explain his own delay in seeking leave.

p. 3

Legal principles established

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  • The discretion to extend time under Rule 4 must be exercised judiciously, weighing the length of delay, explanation, prejudice, undue delay and public interest.

Court orders

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  1. 1.The Notice of Motion dated 11th October, 2024 is dismissed
  2. 2.Costs to the appellant
On appeal from
Environment and Land Court
Mombasa ELC Civil Suit No. 470 of 2011
Jurisdiction invoked
Inherent discretion under Rule 4 of the Court of Appeal Rules (application for extension of time / leave to file out of 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, "Kenya United Steel Company (2022) Limited v Ahmed & another (Civil Appeal (Application) E141 of 2022) [2025] KECA 854 (KLR)", Case Analysis (2025). Civil Application (Mombasa ELC Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/854/eng@2025-03-07

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