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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal (Application) E179 of 2022· [2025] KECA 2320 (KLR)

Capital Group Limited v Ngenya

Court of Appeal
19 December 2025
4,141 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 refused to excuse a company's four-year delay in filing its appeal, showing vague excuses like Covid-19 won't work.

What this practically means

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Executive summary

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Capital Group Limited applied under rule 4 of the Court of Appeal Rules, 2022 for extension of time to file and serve its Record of Appeal and Memorandum of Appeal in Nairobi Civil Appeal No. E179 of 2022, arising from a High Court judgment of 15th November 2018 awarding Grace Wangui Ngenya Kshs 9,000,000 in general and aggravated damages and damages in lieu of apology in a defamation suit. Liability had been settled against the applicant by the Court of Appeal in 2015, leaving only quantum for the intended appeal. The applicant filed its Record of Appeal on 4th April 2022 without leave, outside the 60-day period running from the Certificate of Delay dated 4th November 2021, and brought the extension application on 11th June 2025, three years later. It blamed the Covid-19 pandemic and restructuring within its advocates' firm. Mumbi Ngugi JA applied the settled Salat/Mutiso factors. She held that although the bespeaking letter was not copied to the respondent's advocates, it was actually served on them, so the proviso to rule 84(2) was available. However, the delay was inordinate and unexplained: the applicant took nearly a year to pay for ready proceedings, filed out of time without leave, and offered only generalised assertions of pandemic and restructuring difficulties, contradicted by the firm's continued operations. The prospects of a damages appeal could not be gauged at this stage, and the justice of the cause demanded that the individual respondent not be further troubled by two-decade-old litigation. The application was dismissed with costs to the respondent.

Key legal issues

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01

Availability of the proviso to rule 84(1) where the bespeaking letter was served but not copied

Holding

The proviso to rule 84(2) was available to the applicant because the letter was actually served on the respondent's advocates, evidenced by a receipt stamp dated 23rd November 2018

Reasoning

The court examined annexure GWN1 and found the letter had a receipt stamp from the respondent's advocates, who noted it was not copied to them but was received. Actual service, though not formal copying, satisfied the requirement, so the time for preparing proceedings could be excluded in computing time.

p. 6
02

Whether the delay in filing the Record of Appeal and the extension application was sufficiently explained

Holding

The delay was not sufficiently explained; Covid-19 and firm restructuring were general assertions contradicted by the firm's continued operations

Reasoning

The applicant was notified proceedings were ready on 29th July 2020 but paid for them only on 27th August 2021 and collected them later. The record was filed on 4th April 2022, outside the 60-day period, and the extension application came three years later. The firm was operational and exchanging correspondence during the period, undermining the restructuring excuse.

p. 6
03

Prejudice to the respondent if extension is granted

Holding

The justice of the cause demanded that the respondent, an individual litigant in a two-decade-old defamation dispute, not be further troubled

Reasoning

The defamation arose in 2005, twenty years before the application, and judgment on liability was entered in 2018. The court weighed the age of the litigation against the individual respondent and found that allowing the extension would prolong her suffering from the defamatory publication.

p. 7
04

Chances of success of the intended appeal

Holding

Only quantum of damages could arise on appeal, and an appellate judge could not adequately gauge the prospects of a damages appeal in an extension-of-time application

Reasoning

Liability had been settled by the Court of Appeal in 2015, leaving only the quantum of damages for the intended appeal. Interference with a trial court's discretion on damages is a difficult assessment that cannot be gauged at the interlocutory stage of an extension application.

p. 7

Legal principles established

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  • In exercising discretion under rule 4, the Court considers the length of the delay, the reason for the delay, possibly the chances of the appeal succeeding, and the degree of prejudice to the respondent
  • Generalised assertions of firm restructuring and the Covid-19 pandemic, without specific evidence, do not adequately explain inordinate delay
  • Where a letter bespeaking proceedings, though not copied to the respondent, was actually served on the respondent's advocates, the proviso to rule 84(2) is available to the appellant

Court orders

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  1. 1.The application dated 11th June 2025 is dismissed with costs to the respondent
On appeal from
High Court at Nairobi
HCCC No. 1009 of 2005
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022; sections 3A and 3B of the Appellate Jurisdiction Act; Articles 40, 50 and 159(2) of the Constitution

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, "Capital Group Limited v Ngenya", Case Analysis (2025). Civil Appeal (Application) E179 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2320/eng@2025-12-19

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