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Court of AppealAllowedMotion on notice dated 19th October 2024

Automarks Industries (K) Limited v Commissioner of Customs & Border Control (Civil Application E534 of 2024) [2025] KECA 1204 (KLR)

Court of Appeal of Kenya
4 July 2025
864 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal gave Automarks Industries more time to challenge an earlier appeal decision, accepting its managing director's illness as a good enough excuse for the delay.

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 Nairobi (F. Sichale JA) delivered on 4th July 2025 on a motion dated 19th October 2024 brought under Rule 4 of the Court of Appeal Rules. Automarks Industries (K) Limited sought leave to apply in writing to the registrar for reference to the full Bench of the decision of M'Inoti JA (Single Judge) of 31st May 2024, which had dismissed the applicant's application dated 10th November 2023 seeking to lodge and serve a Notice of Appeal out of time against a High Court judgment of 17th July 2023. The applicant explained the failure to file the reference in time by the indisposition of its India-based Managing Director, Mayur Khara, supported by a doctor's report indicating he could not conduct ordinary business from 20th May to 30th September 2024. The respondent, though served on 26th October 2024, filed no response. The court restated the settled Rule 4 guidelines - length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent - as set out in Mwangi v Kenya Airways Limited and Leo Sila Mutiso v Rose Hellen Wangari Mwangi. Finding the reasons for the delay reasonable and sufficiently explained, and noting that security of Kshs 4,000,000 remained deposited in court, the court allowed the motion as prayed. Costs of the motion were ordered to abide the outcome of the intended reference.

Questions the Court framed

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

  1. 1.Whether the applicant has made out a case for extension of time to file a reference to the full Bench against the decision of the Single Judge dated 31st May 2024
  2. 2.Whether the reasons given for the delay in filing the reference are reasonable and sufficiently explained
  3. 3.Who should bear the costs of the motion

Key legal issues

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01

Principles governing extension of time under Rule 4 of the Court of Appeal Rules

Holding

The Court has wide and unfettered discretion, to be exercised judiciously, taking into account the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.

Reasoning

The court restated the settled guidelines from Mwangi v Kenya Airways Limited and Leo Sila Mutiso v Rose Hellen Wangari Mwangi. It found the applicant's explanation - the indisposition of its India-based Managing Director, evidenced by a doctor's report covering 20th May to 30th September 2024 - to be a plausible reason for the delay, and noted the respondent suffered no prejudice and that security of Kshs 4,000,000 remained deposited in court.

p. 3

Legal principles established

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  • In deciding an application under Rule 4 for extension of time, the Court has wide but judicious discretion, guided by the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.

Court orders

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  1. 1.Leave granted to the applicant to apply in writing to the registrar for reference of the decision of the Single Judge made on 31st May 2024 to the full Bench
  2. 2.Costs of the motion to abide the outcome of the intended reference

The bench

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

majority

Wrote the judgment

On appeal from
Court of Appeal (decision of a Single Judge, M'Inoti JA)
Application dated 10th November 2023
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

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.

It is now well settled that the decision whether or not to extend time for appealing is essentially discretionary.
p. 2Extension of time - discretionary nature
The Court has wide and unfettered discretion in deciding whether to extend time or not. However, in exercising its discretion, the Court should do so judiciously.
p. 2Rule 4 discretion to be exercised judiciously
Accordingly, the applicant's motion dated 19th October 2024, is merited and the same is hereby allowed as prayed.
p. 3Final orders - motion allowed
The costs of this motion shall abide the outcome of the intended reference.
p. 3Final orders - costs

Issues in the judgment

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minor

The respondent is not named anywhere in the judgment; the case title and party list cannot be completed from the text.

minor

The judgment does not state the case/appeal number of the matter; only the motion date of 19th October 2024 identifies the application.

minor

The applicant's application is described in one place as seeking extension of time to lodge a Notice of Appeal, while the current motion seeks reference of the Single Judge's dismissal of that application to the full Bench; the procedural chain is inferable but not fully spelt out.

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, "Automarks Industries (K) Limited v Commissioner of Customs & Border Control (Civil Application E534 of 2024) [2025] KECA 1204 (KLR)", Case Analysis (2025). Motion on notice dated 19th October 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1204/eng@2025-07-04

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