Third Bureau of China City Construction Group Company Limited v Otieno (Civil Application E073 of 2025) [2025] KECA 2061 (KLR)
The bottom line
#Kenya's Court of Appeal granted an extension to appeal despite a 12-month delay, because the applicant corrected its filing mistake quickly.
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 applicant should be granted leave to appeal out of time in a second appeal to the Court of Appeal under Rule 4
- 2.Whether the delay of twelve months in moving the Court has been sufficiently explained
- 3.Whether the respondent would be prejudiced if the extension is granted
Key legal issues
#Exercise of discretion under Rule 4 to extend time despite inordinate delay
The application was allowed notwithstanding a twelve-month inordinate delay because part of the delay flowed from the applicant's initial missteps, which it corrected promptly upon the Court's direction, and the subject matter was substantial.
The Court acknowledged that the twelve-month delay was inordinate, as the respondent submitted. However, the discretion under Rule 4, though unfettered, is guided by precedent: reasons for and length of delay, strength of the intended appeal, and prejudice to the respondent. Here the delay was partly caused by the applicant's initial application being filed before the wrong forum; when directed, it withdrew that application and filed the present one immediately, showing a genuine desire to exercise its right of second appeal. The substantial monetary subject matter also weighed in favour.
Legal principles established
#- In exercising discretion under Rule 4, the Court considers the reasons for the delay, the length of the delay, the strength of the intended appeal, and whether the respondent will be prejudiced if the application is allowed.
- Inordinate delay may nonetheless be excused where part of it was occasioned by procedural missteps subsequently corrected, and a litigant should not be locked out of the seat of justice in such circumstances.
Court orders
#- 1.Leave granted to the applicant to lodge the notice of appeal out of time
- 2.Notice of appeal to be lodged within fourteen (14) days
- 3.Record of appeal to be filed within forty-five (45) days
- 4.Respondent awarded the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court
- Not stated in the judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (single Judge jurisdiction to extend time)
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 the premises therefore, the application has merit and is allowed. The applicant is granted leave to lodge the notice of appeal out of time.
The said notice of appeal shall be lodged within fourteen (14) days. The record of appeal shall be filed within forty-five (45) days of today’s date. The respondent shall have the costs of the application.
The applicant should not be locked out of the seat of justice in the circumstances of this application.
Issues in the judgment
#The judgment does not state the case number, neutral citation, or the names of the parties, referring to them only as 'the applicant' and 'the respondent'.
The judgment is delivered by a single Judge ('L. KIMARU, JUDGE OF APPEAL') although the applicant initially filed an application 'which included prayers which could only be granted by a full bench of the Court'; the present application was properly before a single Judge.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Third Bureau of China City Construction Group Company Limited v Otieno (Civil Application E073 of 2025) [2025] KECA 2061 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2061/eng@2025-12-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.