African China Motor Group Limited v PN Mashru Limited (Civil Appeal (Application) E137 of 2024) [2025] KECA 1542 (KLR)
The bottom line
#The Court of Appeal refused to extend time for a late appeal because the company couldn't explain a nine-month delay or show its appeal had merit.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to extend time under rule 4
The Court has discretion, on such terms as it thinks just, to extend time limited by the Rules for the doing of any act
Rule 4 of the Court of Appeal Rules confers on the Court the discretion to extend time whether before or after the doing of the act. The discretion is guided by the principles in Leo Sila Mutiso v Hellen Wangari Mwangi: length of delay, reason for delay, chances of success, and prejudice to the respondent.
Effect of failure to bespeak proceedings and obtain a certificate of delay
Without a letter requesting proceedings copied to the respondent and a certificate of delay, the time for preparing proceedings is not excluded and the Record should have been filed within 60 days of the Notice of appeal
The proviso to rule 84 excludes from the computation of time the period certified by the registrar as required for preparation and delivery of proceedings, but only where the application for proceedings was made within 30 days in accordance with sub-rule two. The applicant adduced no bespeaking letter and no certificate of delay, so the exclusion did not apply.
Whether the delay was explained
The explanation - unforeseeable reasons for not collecting ready proceedings and missing documents from an old court file - was insufficient, with no evidence of what was missing or registry communications
The court found the explanation far from sufficient: it was unclear what the unforeseeable circumstances were; no indication was given of what documents were missing or their importance; and no communication with or from the Registry supported the claim of missing documents. A delay of 9 months was thus unexplained.
Chances of success and prejudice
With no draft Memorandum of appeal filed, the Court could not discern any likelihood of success, and the Respondent would be prejudiced by continued denial of the fruits of its judgment
The applicant filed no draft Memorandum of appeal, leaving no grounds upon which the merits could be assessed. Combined with what the court described as an unenthusiastic and lethargic prosecution of the motion, extending time would prejudice the respondent who would continue to be denied the fruits of its judgment.
Legal principles established
#- Where an applicant for extension of time does not produce a letter bespeaking proceedings served on the court and the respondent, nor a certificate of delay, the time for preparation of proceedings cannot be excluded from computation of the period of delay, and the Record of appeal must be filed within 60 days of filing the Notice of appeal
- An applicant for extension of time must demonstrate: 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
#- 1.The Notice of motion dated 6th December 2024 is dismissed
- 2.Costs of the application awarded to the Respondent
- On appeal from
- High Court of Kenya, Mombasa
- Mombasa Civil Suit No. 6 of 2009
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "African China Motor Group Limited v PN Mashru Limited (Civil Appeal (Application) E137 of 2024) [2025] KECA 1542 (KLR)", Case Analysis (2025). Civil Application (Notice of Motion dated 6th December 2024) arising from Mombasa Civil Suit No. 6 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1542/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.