https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8164

Kenya National Highway Authority v Marked Klasse Ltd (Civil Appeal E750 of 2024) [2026] KEHC 8164 (KLR) (Civ) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8164 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E750 of 2024 NM Orina, J June 11, 2026 Between Kenya National Highway Authority Appellant and Marked Klasse Limited Respondent (Being an appeal from the ruling decree of Hon. Becky Cheloti Mulemia delivered on 20 May 2024 in MCC No. E5447 of 2022) Judgment Background 1.This appeal arises from the ruling and decree of Hon. Becky Cheloti Mulemia of 20 May 2024 where the learned magistrate found officers of the Appellant in contempt of her orders dated 3 August 2023 and committed them to civil jail for a period of six months. The officers found in contempt and consequently committed to civil jail were Kung’u Ndung’u (the Director General of the Appellant), Joseph Mwangi Githinji, Donald Ochieng, Joseph Kaburia, Lucy Wangari Mwangi and an unnamed asset manager of the Appellant. 2.Dissatisfied with the learned magistrate’s ruling and decree, the Appellant filed the instant appeal on 24 June 2024 on the following grounds:a.The learned trial magistrate erred in fact and law by failing to consider the substance of replying affidavit to the Plaintiff’s notice of motion application dated 4 October 2023 and the written submissions and evidence thereto and by doing as she did the learned magistrate acter per incurium;b.The learned trial magistrate erred in law and in its findings of fact by proceeding against the laws of natural justice and whilst contradicting the right to fair hearing by concluding that the Appellant’s actions constituted contempt of court. The evidence presented did not sufficiently support the court’s conclusion in its ruling that the Appellant willfully disobeyed the court’s orders issued on 3 August 2023;c.The learned trial magistrate erred in fact and law by willfully ignoring the significant procedural irregularities in the contempt proceedings. Specifically, the learned trial magistrate failed to examine the established principles on validity of contempt proceedings and failed to appreciate evidence provided showcasing the Appellant was not properly served with the contempt proceedings and was not given a fair opportunity to appear in court and present a defence, contrary to the principles of natural justice and the right to a fair trial;d.The learned trial magistrate erred in law and fact by disregarding Section 42, Kenya Roads Act, and Article 27(1) of the Constitution to unlawfully deprive the Appellant of equal protection and equal benefit of the law: by avoiding Appellant’s protection from personal liability in respect of all matters and acts bona fide in execution of the functions, powers or duties of his office;e.The learned trial magistrate misinterpreted the relevant law regarding contempt of court. The court applied an incorrect legal standard in determining what constitutes contempt despite the various precedent adduced in the Appellants submissions pointing to the key principles governing the conduct of contempt of court proceedings, leading to an unjust conviction;f.The learned trial magistrate erred in law and fact by failing to adequately consider the Appellant’s intent and state of mind. Contempt of court requires a willful disobedience of a court order, and the evidence did not establish that the Appellant acted with such intent. The court overlooked mitigating factors and possible justifications for the Appellant’s alleged actions and thereafter denying to render mitigation and/or show cause why they ought not to be committed to civil jail, if at all;g.The learned trial magistrate erred in law and fact by ordering arrest of the Appellant’s Director General and unnamed Asset Manager and four (4) other parties who are strangers to suit without options of payment of fines a penalty that is disproportionate and excessive given the nature of the alleged contempt. The court did not appropriately balance the severity of the Appellant’s conduct against the principles of proportionality and fairness in sentencing;h.The learned trial magistrate erred in law and in fact by awarding injunctive orders, payment of unliquidated damages not pleaded specifically and proved as required by law and costs as against the Appellant without proper examination of the Appellant’s evidence and submissions on the Appellant’s replying affidavit and to critically analyse the same and accord it due weight to the extent that the ruling/decree still remains contrary to and incompatible with the applicable law;i.The learned trial magistrate erred in law and fact by disregarding Section 53 of the Kenya Roads Act, to unlawfully and irregularly confer on the Nairobi City County Government and Respondent’s mandate relating to the control, maintenance, development or protection of any road including the road reserves thereof;j.The learned trial magistrate erred in law and fact by making final orders in the nature of unliquidated compensatory damages to the Respondent at an interlocutory stage, thereby grossly prejudicing the prudent management of limited public resources entrusted to the Appellant. It is instructive to note that there was no valuation provided in court as the basis for the award in contravention of the laid down principles of awarding damages 3.This appeal was canvassed by way of written submissions. The Appellants filed submissions dated 22 November 2025 while the Respondent filed submissions dated April 2026. The Appellant’s submissions 4.The Appellant submits that the trial court ignored statutory immunity of public officers under Section 42 of the Kenya Roads Act which provides that any officer or employee of the Appellant is immune is not liable to any action, claim or demand whatsoever for any matter or thing done bona fide for executing the functions powers or duties of the Appellant. In this regard, the Appellant argues that the Appellant’s officials were pursued for actions and/or inactions supposedly done in their official capacity. 5.The Appellant further impugns the trial court’s ruling and decree for ignoring the provisions of Section 53 of the Kenya Roads Act which grants the Appellant control, maintenance and development or protection of any road including road reserves. 6.It is also the Appellant’s contention that the ruling condemned and sentenced four individuals who were not parties to the suit, were not served, and were never heard. The Appellant avers that Donald Ochieng, Joseph Kaburia, Lucy Wangari Mwangi and the unnamed Asset Manager were not party to the proceedings. This, the Appellant argues, violated the doctrine of natural justice. 7.The Appellant further impugns the ruling which was the subject of the contempt proceedings for directing the Appellant to compensate the Respondent for alleged damages purportedly arising from works already undertaken, notwithstanding that the said damages had neither been pleaded with particularity nor subjected to judicial assessment or proof. 8.The Appellant prays for the appeal to be allowed as prayed. The Respondent’s case 9.In its submissions, the Respondent advances five issues for resolution being: whether the appeal is time barred; whether the said ruling was merited; whether the application met the threshold to warrant committal to civil jail; whether the learned magistrate considered all the evidence before arriving at the decision; and, whether the Appellant’s representative cited for contempt knew about the matter and were mentioned in the application. 10.On the first issue identified, the Respondent submits that the appeal offends the provisions of Section 79G of the Civil Procedure Act which provides that an appeal from a subordinate court to the High Court shall be filed within thirty (30) days from the date of the decree or order appealed against. The Respondent avers that in the present case the ruling which is the subject of the appeal was delivered on 20 May 2024 whereas the appeal was filed on 24 June 2024 which was outside the prescribed period of 30 days. For that reason, the Respondent prays for the appeal to be struck out for being incompetent as no leave was sought or was granted to file the same out of time. 11.In support thereof, the Respondent relies on the case of Nicholus Kiptoo Salat v. IEBC & 7 Others [2014] eKLR where the Supreme Court underscored that timelines in litigation are not merely procedural technicalities but are substantive requirements that must be strictly complied with, unless sufficient cause is demonstrated for non-compliance. 12.In the alternative to the foregoing argument, the Respondent submits that the impugned ruling was mase made procedurally and was merited. The Respondent avers that the ruling originated from the Respondent’s suit in Milimani CMCC E5447 of 2022 which sought, inter alia, injunctive reliefs restraining the Appellant, its agents, representatives, and officials from interfering with the Respondent’s construction works and the same was duly served upon the Appellant who responded through a replying affidavit. The Respondent contends that the trial court issued restraining orders against the Appellant’s director and officials and the ruling was issued in the presence of both parties. 13.The Respondent further avers that despite having full knowledge of the said orders, the Appellant’s director and officials willfully disobeyed them by authorising demolition the Respondent’s construction in the restrained areas. The Respondent submits that this prompted the filing of the contempt application dated 23 August 2023 which application was served on the Appellant’s advocates and the same was responded to by a replying affidavit sworn by Eng. Kung’u Ndung’u on 15 December 2023. 14.Further, the Respondent avers that the contempt threshold was met to the extent that restraining orders were issued on 3 August 2023 prohibiting the Appellant from interfering with the Respondent’s works; the Appellant was served on 10 August 2023 and therefore had actual knowledge of the orders; and there was willful disobedience of the orders. 15.The Respondent also contends that the trial court considered all the evidence before arriving at the decision and that the Appellant’s representatives who had been cited for contempt were fully aware of the matter and that the issue was never raised before the trial court. 16.The Respondent prays that the appeal be dismissed with costs. Analysis and determination 17.The first issue for determination before consideration of other issues in this appeal is whether the appeal is time barred. The Respondent contends that the appeal was filed outside the statutory timelines of 30 days upon the issuance of the trial court ruling. 18.Section 79G of the Civil Procedure Act provides as follows:Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time. 19.The essence of Section 79G of the Civil Procedure Act is that any party who is dissatisfied with a decision of a subordinate court then they must file an appeal within a prescribed period of 30 days but a failure to do so within the prescribed timelines may be remedied if the said party seeks leave of the High Court to file the appeal out of time. The High Court shall then be satisfied that the party has shown “good and sufficient cause” for seeking leave to file the appeal out of time before admitting that appeal. 20.I have examined the record and I note that the decision of the subordinate court in the instant appeal was rendered on 20 May 2024. A dissatisfied party was expected to file an appeal by 20 June 2024, within 30 days of the ruling. The instant appeal was filed on 24 May 2024, 4 days out of time. The Appellant did not seek leave of the court to file this appeal out of time. Even though the Appellant was late to file the appeal by only four days, the law requires a party to move the court and to show good and sufficient cause before they are allowed to file an appeal out of time. In Salat v. Independent Electoral and Boundaries Commission & 7 Others (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling), the Supreme Court had an opportunity to emphasise the essence of moving a court for extension of time as follows:Pursuant to rule 33(1) of the court’s rules, it is mandatory that an appeal can only be filed within 30 days of filing the notice of appeal. Under rule 53 of the court’s rules, this court can indeed extend time. However, it cannot be gainsaid that where the law provides for the time within which something ought to be done, if that time lapses, one need to first seek extension of that time before he can proceed to do that which the law requires. 21.When the law provides a timeline for doing something and the thing to be done is not done within that timeline, the assumption is that the party has waived or forfeited the right to do that thing. For appeals from the subordinate court, the window of appeal closes upon the expiry of the period of 30 days and that window can only be reopened by the High Court upon being moved and upon being satisfied that the Appellant has shown good and sufficient cause. There is no automatic right to extension of time. Even though the period of delay in the instant appeal is four days, the court does not have suo motu powers to admit the appeal out of time without being moved by the Appellant. The appeal is therefore incompetent and the same is struck out. The Respondent shall have costs. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 11TH DAY OF JUNE, 2026.NABIL M. ORINAJUDGEIn the presence of:Mr. Mukathe for the RespondentN/A for the AppellantLisa – Court Assistant