https://new.kenyalaw.org/akn/ke/judgment/keca/2026/954

Kenya Power & Lighting Company Ltd v Kenafric Diaries Manufacturers Ltd (Civil Appeal (Application) E464 of 2025) [2026] KECA 954 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 954 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E464 of 2025 Katwa Kigen, JA May 15, 2026 Between Kenya Power & lighting Company Ltd Applicant and Kenafric Diaries Manufacturers Ltd Respondent (An application to file a record of Appeal out of time and a supplementary record of appeal out of time from the ruling and order of the High Court of Kenya at Nairobi (J. Mulwa, J.) dated 27th March,2024 in H.C.C.C No. E464 of 2025) Ruling 1.The application before Court is dated 14th July 2025 and is brought under Sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9, Rules 4, 43, 44, 45, 49 and 90 of the Court of Appeal Rules, 2022, Article 159 of the Constitution of Kenya, and all other enabling provisions of the law. The same seeks, in the main, an order granting leave to the Applicant, Kenya Power & Lighting Company Limited, to file a supplementary record of appeal out of time, and for the draft supplementary record of appeal to be deemed as properly filed upon payment of the requisite court fees. 2.The application is premised on the grounds on the face of the motion and the supporting affidavit of Kevin Otieno, Advocate, sworn on July 14, 2025. It is contended that the Honourable Lady Justice Janet Mulwa delivered her ruling on March 27, 2025, whereupon leave was sought and granted to prefer an appeal. A Notice of Appeal was filed on April 3, 2025, and thereafter, by a letter dated 28th April, 2025, the Applicant applied for certified copies of typed proceedings, which were collected on June 4, 2025. 3.The Applicant avers that a request for a certificate of delay was made on June 11, 2025, but despite several follow-up letters, the same was only issued on July 11, 2025, though dated June 23, 2025. The Deputy Registrar had declined to issue the certificate until after the lapse of sixty days, thereby compelling the Applicant to lodge the initial record of appeal without the certificate of delay. The Applicant now seeks leave to file a supplementary record of appeal to include the said certificate, which is a crucial document for the proper determination of the appeal. 4.The application is not opposed, as the Respondent, Kenafric Diaries Manufacturers Limited, did not file any replying affidavit or written submissions. The Applicant did file written submissions dated 16th April 2026, wherein counsel submitted that the application is anchored on Rule 4 of the Court of Appeal Rules, which grants this Court discretion to extend time for the doing of any act authorized or required by the Rules. Counsel relied on the principles set out in Leo Sila Mutiso v Hellen Wangari Mwangi [1997] 2 EA 231, Fakir Mohamed v Joseph Mugambi & 2 Others [2005] eKLR, and Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, emphasizing that the discretion to extend time is equitable and to be exercised judiciously, guided by reason and principle rather than caprice. 5.It was submitted that the delay herein is not inordinate, is sufficiently explained, and was occasioned by administrative circumstances beyond the Applicant’s control. Counsel further argued that the omission of the certificate of delay is curable under Rule 90 of the Court of Appeal Rules, which permits the filing of a supplementary record of appeal to include omitted documents. Reliance was placed on Baobab Beach Resort v Duncan Muriuki [2014] eKLR and Landbank Real Estate Investment Trust Ltd v Standard Chartered Bank Kenya Ltd [2019] eKLR, where the Court held that procedural omissions are curable in furtherance of substantive justice. 6.I have considered the application, the affidavits on record and submissions by counsel and the law. There is no doubt that the discretion that I am being called upon to exercise in this application is under Rule 4 of the Rules, which provides:-“The Court may on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or of a Superior Court, for doing any act authorized or required by these Rules, whether before or after doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.” 7.The discretion under Rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice. I take note that in exercising my discretion I ought to be guided by consideration of the factors stated in previous decisions of this Court, including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent and interested parties if the application is granted, and whether the matter raises issues of public importance. In Henry Mukora Mwangi -vs- Charles Gichina Mwangi- Civil Application No. Nai. 26 of 2004, this Court held:-“It has been stated time and again that in an application under rule 4 of the Rules the learned single Judge is called upon to exercise his discretion which discretion is unfettered. It may be appropriate to re-emphasize this principle by referring to the decision in Mwangi -vs- Kenya Airways Ltd. [2003] KLR 486 in which this Court stated:-“Over the years, the Court has, of course set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance in Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi - Civil Application No. Nai. 255 of 1997 (unreported), the Court expressed itself thus:-“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.” 8.At this juncture, I am of the considered view that it is imperative to determine whether the explanation advanced by the Applicant for the delay in lodging the supplementary record of appeal is reasonable and excusable. The Applicant contends that the delay was occasioned by administrative circumstances beyond its control, particularly the Deputy Registrar’s refusal to issue a certificate of delay until after the lapse of sixty days, despite repeated follow‑up letters and visits. On the other hand, there is no contrary position from the Respondent, as no replying affidavit or submissions were filed to challenge the Applicant’s explanation. 9.With due consideration, I accept that the delay was not deliberate but arose from procedural and registry‑related constraints in obtaining the certificate of delay—a document essential for the completeness of the record of appeal. I therefore find that the explanation tendered by the Applicant is both reasonable and excusable within the meaning of Rule 4 of the Court of Appeal Rules, and that the Applicant acted diligently once the certificate was issued. 10.On the issue of whether the intended appeal is arguable, it is not disputed that the Applicant did not annex a draft Memorandum of Appeal to the present application. Ordinarily, such a document assists the Court in assessing whether the intended appeal raises arguable grounds. However, in this case, the omission is not fatal since the record of appeal already on file contains the pleadings and grounds of appeal from which the Court can discern the issues intended to be pursued. These include, among others, the contention that the learned Judge erred in failing to ascertain the instruction fees from the pleadings and in disregarding the provisions of Schedule 6 Section 1 of the Advocates Remuneration Order. From the material already on record, the Court is able to appreciate that the intended appeal raises bona fide and arguable questions of law and fact, and therefore, the absence of a draft Memorandum of Appeal does not prejudice the determination of this application. Even if the Memorandum of Appeal were attached, this Court would not at this juncture determine the merits of the grounds of appeal. In Joseph Wanjohi Njau -vs- Benson Maina Kabau- Civil Application No. 97 of 2012 K. M'inoti, J.A held,“The Court of Appeal has observed that an arguable appeal is not one that must necessarily succeed but is one which ought to be argued fully before the Court.” 11.I am satisfied that the delay has been adequately explained. The Applicant acted diligently in pursuing the certificate of delay, and the delay was occasioned by the court registry’s administrative processes rather than indolence on the part of the Applicant. The Respondent has not demonstrated any prejudice that would be occasioned by the grant of the orders sought. 12.I am persuaded on the strength of the evidence and submissions before me that no tangible or legally cognizable prejudice will be visited upon the respondent should the orders sought be granted. Any procedural inconvenience arising from the enlargement of time is, in my considered view, a matter adequately redressable through an award of costs. The scales of justice, therefore, incline towards the allowance of the application, the respondent’s interests remaining fully protected within the equitable and compensatory framework of costs and procedural fairness. 13.In the totality of the circumstances, and upon a judicious appraisal of the material placed before me, I am satisfied that the Applicant has demonstrated sufficient cause to warrant the Court’s indulgence. 14.I therefore proceed to issue the consequential orders that;a.Time is extended as requested.b.Leave is hereby granted to the Applicant to file a supplementary record of appeal out of time.1.The draft supplementary record of appeal annexed to the application shall be deemed as duly filed upon payment of the requisite court fees.2.Costs of the application shall abide the outcome of the appeal. 17.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY, 2026.KATWA KIGEN K. J......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR