Midland Construction Co Limited v Bachulal Popatial (K) Limited & another (Civil Application E104 of 2025) [2026] KECA 25 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a short, explained delay in filing an appeal can be excused, even after the losing side has already paid the decree.
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 file the notice of appeal out of time under Rule 4 of the Court of Appeal Rules
- 2.Whether the delay of about ten days was inordinate and satisfactorily explained
- 3.Whether execution of the decree and payment of the decretal sum bars the grant of leave to appeal
Key legal issues
#Whether the applicant's explanation for the delay and the length of the delay justified extension of time under Rule 4
Yes. The illness of the applicant's director was an excusable reason and the ten-day delay was not inordinate; the application was filed timeously.
The court applied the settled Rule 4 factors: reason for delay, length of delay, chances of success and prejudice to the respondent. It found the director's illness at the critical period excusable, the delay of about ten days short, and the application itself filed without delay, satisfying the discretion in the applicant's favour notwithstanding the respondent's scepticism.
Whether execution of the decree and payment of the decretal sum rendered the intended appeal nugatory
No. Execution does not extinguish the right of appeal and is not a bar to granting leave under Rule 4.
The respondent argued the substratum of the appeal had ceased to exist because the decree was executed on 19th December 2025 and the decretal sum paid. The court held that the right of appeal is a constitutional right which survives execution, and that satisfaction of a decree does not defeat an application for extension of time.
Legal principles established
#- The discretion under Rule 4 to extend time 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.
- Execution of the decree and satisfaction of the decretal sum does not, of itself, bar a party from being granted leave to exercise the constitutional right of appeal.
- A short delay of about ten days, with an excusable explanation and a timeously filed application, is not inordinate.
Court orders
#- 1.The application is allowed
- 2.The applicant is granted leave to lodge the notice of appeal out of time
- 3.The notice of appeal shall be filed and served within fourteen (14) days
- 4.The record of appeal shall be filed and served within forty-five (45) days of the service of the notice of appeal
- 5.There shall be no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Kisumu
- Kisumu HC Civil Appeal No. E119 of 2024
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (discretionary extension of time to file notice of 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.
The fact that the decree has already been executed is not a bar to this Court granting the applicant the chance to exercise its undoubted constitutional right of appeal.
The delay of a period of ten (10) days is not inordinate. The reason for the delay is excusable.
In the premises therefore, the application has merit and is hereby allowed. The applicant is granted leave to lodge the notice of appeal out of time.
Issues in the judgment
#The chronology in the replying affidavit appears inconsistent: the application was filed on 15th July 2025 but the deponent states the decree was executed on 19th December 2025, a date after the application was filed.
The names of the parties and the case number of the application before the Court of Appeal are not stated in the judgment text supplied.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Midland Construction Co Limited v Bachulal Popatial (K) Limited & another (Civil Application E104 of 2025) [2026] KECA 25 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/25/eng@2026-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.