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Court of AppealPartially AllowedNotice of motion dated 30th May, 2025 (Civil Application - extension of time and stay)

Kenya National Highway Authority v SBI International Holdings (Kenya) (Civil Application E429 of 2025) [2026] KECA 111 (KLR)

Court of Appeal of Kenya
30 January 2026
979 words in judgment
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The bottom line

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Kenya's Court of Appeal gave KENHA 45 more days to appeal, but refused to pause the High Court ruling while the appeal is prepared.

What this practically means

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Executive summary

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Kenya National Highway Authority (KENHA) moved the Court of Appeal by notice of motion dated 30th May 2025 seeking leave to file its notice of appeal out of time, extension of time to file the memorandum and record of appeal, and a stay of execution of a High Court ruling by Mochache J delivered on 21st March 2025 in KENHA's absence. KENHA explained that it had participated in the suit and had a pending chamber summons seeking referral of the dispute to arbitration under section 6(1) of the Arbitration Act, but only learnt of the ruling after the appeal period had lapsed. The respondent opposed, arguing serious laches, that the draft memorandum disclosed no arguable appeal, and that leave would be superfluous given an unappealed High Court order of 18th October 2024 refusing leave to file a defence out of time. The court first held, citing Kenya Industrial Estates Ltd v Samuel Sang & another, that a single judge lacks jurisdiction to entertain a rule 5(2)(b) application, effectively excluding the stay relief from its remit. On extension of time under rule 4, the court applied the Salat criteria. It found the 56-day delay in moving the court unexplained - a lapse that 'on another occasion... would have been frowned upon' - but not inordinate and therefore pardonable, noting also that no prejudice to the respondent had been demonstrated. The motion was allowed; the applicant was directed to file and serve the notice of appeal and record of appeal within 45 days, with costs of the application in the intended appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether a single judge of the Court of Appeal has jurisdiction to entertain an application under rule 5(2)(b) of the Court of Appeal Rules
  2. 2.Whether the applicant should be granted leave to file the notice of appeal out of time and the notice of appeal already lodged be deemed duly filed and served
  3. 3.Whether the applicant should be granted extension of time to file the memorandum of appeal and record of appeal out of time
  4. 4.Whether there should be a stay of execution of the ruling and order of the High Court delivered on 21st March 2025 pending the intended appeal

Key legal issues

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01

Jurisdiction of a single judge over rule 5(2)(b) applications

Holding

A single judge cannot entertain a rule 5(2)(b) application; the court is bereft of jurisdiction when constituted by a single judge

Reasoning

The motion sought a stay pending the intended appeal, which is the preserve of the full Court under rule 5(2)(b). The court relied on Kenya Industrial Estates Ltd v Samuel Sang & another to hold that a single judge, as constituted, has no jurisdiction over such applications, and therefore confined itself to the extension of time relief under rule 4.

p. 1
02

Extension of time to file notice of appeal and record of appeal

Holding

Extension of time granted despite a 56-day delay and inadequate explanation, because the delay was not inordinate and no prejudice was demonstrated

Reasoning

The court applied the Salat factors: length of and reason for delay, prejudice, undue delay in bringing the application, and public interest. The ruling had been delivered in the applicant's absence although it had participated in the proceedings and had a pending application. While the further delay in bringing the motion was unexplained and would ordinarily be frowned upon, it was not inordinate, and the respondent demonstrated no prejudice. The discretion under rule 4 was accordingly exercised in the applicant's favour.

p. 2

Legal principles established

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  • A single judge of the Court of Appeal, when constituted as such, has no jurisdiction to entertain an application under rule 5(2)(b) of the Court of Appeal Rules
  • The discretion to extend time under rule 4 of the Court of Appeal Rules must be exercised judiciously, considering the length of and reason for the delay, prejudice to the respondent, whether the application is brought without undue delay, and in some instances public interest; the applicant bears the burden of laying a basis

Court orders

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  1. 1.The notice of motion dated 30th May, 2025 is allowed
  2. 2.The applicant shall file and serve a notice of appeal together with a record of appeal within forty-five (45) days of the ruling
  3. 3.Costs of the application shall be in the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time); the court held that a single judge lacks jurisdiction under rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the ruling and order of Hon. Justice V M Mochache delivered on 21st March 2025 pending hearing and determination of the intended appeal

The court allowed the motion for extension of time but its final orders do not grant the stay sought; only extension of time was ordered

p. 2

Costs

Costs of this application shall be in the intended appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

this court, when constituted by a single judge, is bereft of jurisdiction to entertain an application under rule 5(2)(b) of the Court of Appeal Rules
p. 1Jurisdiction of a single judge
Extension of time is an equitable remedy that is only available to a deserving party, at the discretion of the court.
p. 2Nature of extension of time
However, the delay is not inordinate and therefore pardonable. In addition, the respondent has not demonstrated any prejudice it may sufier if time is extended.
p. 2Discretion on delay and prejudice
The applicant shall file and serve a notice of appeal together with a record of appeal within forty-five (45) days of this ruling. Costs of this application shall be in the intended appeal.
p. 3Final orders and costs

Issues in the judgment

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minor

The replying affidavit of the respondent is described as sworn on 5th November, 2025, which post-dates the application of 30th May, 2025 and precedes the ruling date; the date may be a typographical error in the judgment

minor

The judgment states 'the respondent has not told court when it first learnt of the ruling', which on its face appears to refer to the applicant rather than the respondent, an apparent internal confusion in attribution

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, "Kenya National Highway Authority v SBI International Holdings (Kenya) (Civil Application E429 of 2025) [2026] KECA 111 (KLR)", Case Analysis (2026). Notice of motion dated 30th May, 2025 (Civil Application - extension of time and stay). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/111/eng@2026-01-30

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