Grain Industries Limited v Ali (Civil Appeal (Application) E050 of 2024) [2025] KECA 932 (KLR)
The bottom line
#Kenya's Court of Appeal refused to overturn a judge's decision giving Grain Industries more time to file its appeal, so the appeal continues.
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 reference discloses sound principles entitling the full Court to interfere with the single Judge's discretionary ruling extending time
- 2.Whether the Notice of Motion dated 7th May 2024 was incompetent or amended without leave, such that there was no substantive application before the single Judge
- 3.Whether the learned single Judge erred in accepting that the mistake of counsel should not be visited on the Applicant
- 4.Whether the Applicant's Notice of Appeal was filed against a ruling rather than the judgment of the ELRC, and whether that issue could be raised at this stage
- 5.Whether the appeal was shown to be arguable
Key legal issues
#Principles for interference with a single Judge's discretionary decision on a reference to the full Court
The full Court will not easily upset a single Judge's discretion; interference requires that the Judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended a point of law or fact, or that the decision is plainly wrong.
The Court adopted the Kenya Canners Limited v Titus Muiruri Doge formulation and applied it to the reference. Having reviewed the record, it found the single Judge had given a satisfactory explanation for the delay attributable to counsel, and that the Applicant had acted with haste in seeking extension after the striking out, evincing enthusiasm to pursue the appeal.
Whether an issue not raised before the single Judge may be raised on reference
No. A ground not canvassed in earlier proceedings cannot be advanced to impugn the Judge's exercise of discretion at reference stage.
The Respondent argued that the Applicant's counsel never swore an affidavit owning up to the error, and that the Notice of Appeal was against a ruling rather than the judgment. The Court found on review of the record that neither issue had been canvassed before the single Judge or in earlier proceedings, and that parties are bound by their pleadings.
Whether the motion of 7th May 2024 was incompetent or amended without leave
The allegations of incompetence and amendment without leave were unsubstantiated on the record and the complaint was unfounded.
The Court examined the record before the single Judge and before it and found no disclosed deficiencies in the Applicant's application. Similarly, the complaint that the motion set out no grounds of appeal was found unsubstantiated. The Respondent's contentions in the reference letter and submissions were therefore rejected.
Legal principles established
#- A reference to the full Court from a single Judge's ruling under rule 4 is not an appeal; the full Court will interfere only on established principles (irrelevant/relevant considerations, misapprehension of law or fact, or a plainly wrong decision).
- A mistake of counsel, where bona fide, can entitle a party to the exercise of the Court's discretion under rule 4, but the Court must examine the nature or quality of the mistake.
- A party cannot raise a new issue on a reference that was never canvassed before the single Judge; parties are bound by their pleadings.
Court orders
#- 1.The Respondent's reference dated 29th November 2024 against the ruling of the single Judge of 22nd November 2024 is dismissed
- 2.The Applicant's Memorandum and Record of Appeal are deemed as properly filed
- 3.Costs in the appeal (awarded to the Applicant)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya (decision of single Judge, Lessit/Lesiit, JA)
- Civil Application No. E050 of 2024
- Jurisdiction invoked
- Rule 55(1)(b) of the Court of Appeal Rules (reference to the full Court from a ruling of a single Judge)
Relief refused
#Setting aside of the single Judge's ruling of 22nd November 2024 extending time
The reference lacked merit; no basis was found to interfere with the single Judge's exercise of discretion
Costs
Costs in the appeal (i.e., costs awarded to the successful Applicant); no contrary costs order recorded.
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.
Accordingly, we find that the Respondent’s reference as set out in the letter dated 29th November 2024 against the ruling of the single Judge (Lesiit, JA.) of 22nd November 2024, to be lacking in merit. It is hereby dismissed with the result that the Applicant’s Memorandum and Record of Appeal are deemed as properly filed. Costs in the appeal.
A reference to the full court is not an appeal although it is in the nature of one and in exercising the discretion under rule 4, the single Judge was exercising the power on behalf of the full court and his discretion would not therefore be easily upset except on sound principles
a mistake by counsel, particularly where such a mistake is bona fide, can entitle an applicant to the exercise of the court’s discretion in his favour. But before doing so, the Court must, of necessity, examine the nature or quality of the mistake or mistakes.
Parties are bound by their pleadings and, therefore, the issue cannot now be raised before us.
Issues in the judgment
#The judgment inconsistently renders the single Judge's name as 'Lessit' and 'Lesiit' (e.g., 'a single judge (Lessit, JA.)' and 'the ruling of the single Judge (Lesiit, JA.) of 22nd November 2024').
The judgment contains internal date discrepancies regarding the ELRC judgment: it is described as delivered on 13th May 2020 in some passages and as a 'Judgment dated 13th May 2022' in others.
Typographical/garbled passages appear, e.g., 'ordered t the Applicant to pay' and 'The whether the mistake should be visited on his client the supplicant (sic). issue is'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grain Industries Limited v Ali (Civil Appeal (Application) E050 of 2024) [2025] KECA 932 (KLR)", Case Analysis (2025). Civil Application No. E050 of 2024 (Reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/932/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.