Kenya National Highways Authority v Port Properties Limited & another (Civil Application E090 of 2024) [2025] KECA 1529 (KLR)
The bottom line
#Kenya's Court of Appeal gave KeNHA a second chance to appeal a Kshs. 768 million land compensation award after explaining filing mix-ups during the pandemic.
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 delay in filing the application for extension of time has been sufficiently explained
- 2.Whether the intended appeal has chances of success
- 3.Whether the Applicant has satisfied the requirements of rule 4 of the Court of Appeal Rules to warrant extension of time and deemed filing of the Notice of Appeal
Key legal issues
#Extension of time under rule 4 and the governing principles
The discretion under rule 4 is 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
The Court adopted the classic principles in Leo Sila Mutiso vs Hellen Wangari Mwangi as the framework for rule 4 applications. It then applied the framework to the facts: the delay was attributed to a filing error during the newly introduced e-filing system during the Covid-19 pandemic, the inability to trace the stamped Notice of appeal, a mistaken application for extension made in the trial court, and the nearly one year the trial court took to render its decision dismissing that application.
Whether the delay was adequately explained
The delay from the judgment to the filing of the instant application was sufficiently explained, including the period consumed by the misdirected application in the trial court and the pursuit of stay proceedings
The Court accepted that the Notice of appeal was filed together with the letter bespeaking proceedings during the Covid-19 pandemic when e-filing was new, and that an error may have occurred. The erroneous filing of the extension application in the Environment and Land Court, though showing a lack of familiarity with the Rules, cost the Applicant almost a year awaiting the trial court's ruling. Counsel's engagement in stay-of-execution proceedings, allowed on 21st June 2024, explained the remaining period.
Chances of success and balance of prejudice
The intended appeal raised fundamental issues meriting ventilation, and greater prejudice would befall the Applicant, and the Kenyan taxpayer, if extension were refused
The Court noted the draft memorandum of appeal raised fundamental issues, including the award of mesne profits without proof of occupation and interest contrary to Section 117 of the Land Act. Given the exorbitant sums of over Kshs. 768 million at stake and the contention that payment would cause double payment and unjust enrichment at taxpayers' expense, the Court found greater prejudice to the Applicant than to the 1st Respondent and exercised its discretion in favour of extension.
Legal principles established
#- Under rule 4 of the Court of Appeal Rules the Court may extend time for doing any act authorised or required by the Rules on such terms as it thinks just, whether before or after the time has expired
Court orders
#- 1.The Notice of Appeal dated 10th November 2021 to be deemed as properly filed
- 2.The Applicant to serve the Notice of Appeal on the Respondents within 7 days from the date of the ruling
- 3.The Memorandum and Record of Appeal to be lodged and served in accordance with rule 86 of the Court of Appeal Rules
- 4.Costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court at Mombasa
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4 and 77(2) of the Court of Appeal Rules
Relief refused
#Costs of the application against the Respondents
The Court only provided for costs in the appeal, not the application
Costs
Costs in the appeal.
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.
All in all, having analysed the material advanced by the Applicant to explain the delay, I am satisfied that it has been sufficiently explained.
In sum, the Applicant having satisfied the requirements of rule 4, I hereby do exercise my discretion to extend time for filing the Notice of appeal, and for the Notice of appeal dated 10th November 2021 to be deemed as properly filed.
i. the Notice of Appeal dated 10th November 2021 to be deemed as properly filed; ii. the Applicant to serve the Notice of Appeal on the Respondents within 7 days from the date of this ruling;
Issues in the judgment
#The judgment inconsistently dates the Notice of appeal, describing it as dated 10th November 2021 in places and as dated 11th November 2021 elsewhere
The judgment refers to counsel for the Applicant as both Senior Counsel Prof. Mumma and, in describing the Notice of appeal's signatory, appears to omit the surname
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Highways Authority v Port Properties Limited & another (Civil Application E090 of 2024) [2025] KECA 1529 (KLR)", Case Analysis (2025). Application dated 5th September 2024 (arising from ELC Petition, Judgment of 28th October 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1529/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.