Kenya Power & Lighting Company Ltd v Murungi (Miscellaneous Application E004 of 2023) [2024] KEELC 3692 (KLR)
The bottom line
#Kenya's High Court allowed Kenya Power to appeal late, ruling a short, explained delay plus an arguable appeal justifies extending time.
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 court should grant extension of time to the applicant to file a memorandum of appeal against the decision of Hon. Ezra Ayuka in Nkubu PMCC No. 55 of 2018
Key legal issues
#Whether the delay of about one month in filing the appeal was inordinate and satisfactorily explained
The delay was not inordinate and the reason - the lower court's delay in supplying a certified copy of the judgment plus internal decision-making time - was excusable.
The court measured the period between delivery of judgment on 13th July 2023 and the application of 11th September 2023, finding only about one month beyond the 30-day limit. It accepted the certified copy was only availed on 21st August 2023, so administrative lapse by the registry and time taken for internal instructions justified the delay.
Whether the intended appeal is arguable and whether the respondent would suffer prejudice
The intended appeal is arguable and not frivolous, and the respondent can be adequately compensated by costs and interest.
Applying the Salat principles, the court found the grounds challenging the entire trial decision warranted interrogation. On prejudice, it reasoned that any loss to the respondent from delayed enjoyment of the decree could be remedied by costs and interest if the appeal succeeded.
Legal principles established
#- Extension of time is an equitable remedy available to a deserving party at the court's discretion, and the applicant bears the burden of explaining the delay.
- An arguable intended appeal need not succeed; it suffices that it is not frivolous.
Court orders
#- 1.Leave is granted to the applicant to file appeal out of time against the Judgment delivered in Nkubu PMCC No. 55 of 2018
- 2.The applicant to file and serve its Memorandum of Appeal within Fourteen (14) days hereof
- 3.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act Cap 21 and Order 51 Rule 1 of the Civil Procedure Rules 2010
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.
I am satisfied that the applicant has satisfied the prerequisite for granting of a relief under Section 79 G of the Civil Procedure Act.
I find the reason for the delay well explained and excusable.
Leave is granted to the applicant to file appeal out of time against the Judgment delivered in Nkubu PMCC No. 55 of 2018.
Costs of the application to abide the outcome of the appeal.
Issues in the judgment
#The respondent argues Section 79G only empowers admission of an appeal out of time and not extension of time, but the court did not address this objection in its analysis before granting leave.
The court describes the period between 13th July 2023 and 11th September 2023 as 'about one month' from the expiry of the appeal period; it is in fact about two months, as the respondent herself notes.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Power & Lighting Company Ltd v Murungi (Miscellaneous Application E004 of 2023) [2024] KEELC 3692 (KLR)", Case Analysis (2024). Notice of Motion dated 11th September 2023 (arising from Nkubu PMCC No. 55 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3692/eng@2024-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.