Kabete Dam Limited & another v Ng'ang'a & another (Civil Application E009 of 2023) [2025] KECA 1969 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed Kabete Dam's bid to file a late appeal, because nearly 15 months of unexplained delay killed its chances.
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 applicants should be granted enlargement of time for filing the notice of appeal filed out of time on 17th February 2020
- 2.Whether the delay was explained and whether it was inordinate
- 3.Whether the intended appeal has chances of success
- 4.Whether the respondents would suffer prejudice if the extension were granted
Key legal issues
#Whether the applicants explained the delay in filing the notice of appeal out of time
The delay was not explained. No correspondence with former advocates was annexed, and no explanation was offered for the period between 17th February 2020 and 13th January 2023.
The applicants blamed their former advocates for indecision between appeal and review, but produced no instructions or correspondence evidencing prompt action after judgment. Even if advocates were at fault, the new advocates came on record on 29th October 2021 yet waited nearly 15 months before applying, an inordinate, unexplained delay which disentitles them to the discretion.
Whether the intended appeal has chances of success
The court was not persuaded that the intended appeal had good chances of success after perusing the draft grounds, the impugned judgment and the replying affidavit.
The respondents had paid Kshs. 31,500,000 under an offer for an off-plan sale of House No. 7 on LR 2951/36 and held a decree for refund and Kshs. 38,000,000 damages for loss of bargain. The court found the appeal frivolous and held that granting the orders would be highly prejudicial to respondents who paid the money years ago.
Legal principles established
#- In an extension-of-time application the court exercises an unfettered discretion but must consider the period of delay, the reason for the delay, the chances of success of the intended appeal, and the degree of prejudice to the respondent
- Unexplained inordinate delay disentitles an applicant from the court's favourable discretion in extension-of-time applications
Court orders
#- 1.The applicants' notice of motion dated 13th January 2023, insofar as it seeks enlargement of time for filing the notice of appeal, is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court, Milimani
- ELC Suit No. 12 of 2019
- Jurisdiction invoked
- Discretionary jurisdiction of a single Judge of the Court of Appeal to enlarge time for filing a notice of appeal under the Court of Appeal Rules
Relief refused
#Enlargement of time for filing the notice of appeal
Unexplained inordinate delay of nearly 15 months between the change of advocates and the application, no good chances of success, and prejudice to the respondents who hold a decree
Costs
Application dismissed with costs to the respondents
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.
In an application of this nature, the Court exercises unfettered discretion, but in doing so, the Court must consider the period of the delay, the reason for the delay, possibly the chances of success of the intended appeal, and the degree of prejudice the respondent may sufier if the application is granted.
This unexplained inordinate delay in itself disentitles the applicants of this Court's discretion in their favour.
All in all, I find this application unmeritorious and dismiss it with costs to the respondents.
Issues in the judgment
#The ruling refers to a similar pending application by the applicants (Civil Application Nai. 111 of 2020) raised by the respondents as an abuse of process, but the court makes no finding on it
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kabete Dam Limited & another v Ng'ang'a & another (Civil Application E009 of 2023) [2025] KECA 1969 (KLR)", Case Analysis (2025). Civil Application (extension of time) arising from Milimani ELC Suit No. 12 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1969/eng@2025-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.