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Court of AppealDismissedCivil Appeal (Application) No. E051 of 2022 (Application dated 25th June 2025)· [2025] KECA 2028 (KLR)

Royal Sian Limited v Cove Investments Limited & 5 others

Court of Appeal of Kenya
27 November 2025
4,110 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to excuse a five-year delay in filing an appeal, warning that condoning delay is an exceptional remedy, not a right.

What this practically means

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Executive summary

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This is a ruling by a single judge of the Court of Appeal (Mativo, JA) at Eldoret on an omnibus application dated 25th June 2025 by Royal Sian Limited seeking leave to lodge a notice and record of appeal out of time against the judgment of Ohungo, J. in Nakuru ELC Petition No. 360 of 2017, and stay of execution. The learned judge confined himself to the prayer for leave, observing that the omnibus application combined prayers that cannot be determined together by a single judge. The trial court had declared a constructive trust and proprietary estoppel in favour of Cove Investments Limited and ordered transfer of the suit property. The Court of Appeal full bench (Mativo, Gachoka and Odunga JJ.A) had on 20th June 2025 struck out the 2nd respondent's appeal after the property was transferred pendente lite in violation of lis pendens. The single judge found the applicant's plea of ignorance of the proceedings contradicted by its own admission of awareness from 19th October 2020 and by its use of the same advocates as the 2nd respondent; the applicant was approbating and reprobating. The delay of almost five years was inordinate and unexplained, the advocate's-negligence argument raised only in submissions was rejected, and the applicant had not approached the Court with clean hands. The application was dismissed with costs to the 1st respondent.

Key legal issues

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01

Explanation for inordinate delay

Holding

The applicant's claim of ignorance of the proceedings was contradicted by its own admission of knowledge from 19th October 2020 and by shared counsel with the 2nd respondent; the applicant was approbating and reprobating

Reasoning

The applicant swore it only learnt of the litigation in May 2025, yet admitted awareness from a letter of 19th October 2020. Its advocates acted for both the applicant and the 2nd respondent in the sale and during trial, so knowledge was imputed. The applicant did not respond to the collusion allegations and chose not to join the trial proceedings.

p. 8
02

Exercise of discretion under Rule 4

Holding

The discretion was declined because the applicant did not approach the Court with clean hands and the delay was inordinate with no plausible explanation

Reasoning

Although the Court has discretion under Rule 4 to extend time, it must be exercised to serve substantial justice and guided by legal principles. Even sufficient cause does not automatically entitle a party to condonation. The applicant's conduct, including a transfer pendente lite in violation of lis pendens and contrary to a court order, disentitled it from the exercise of the Court's discretion in its favour.

p. 8
03

Raising new issues in submissions

Holding

The argument that mistakes of the advocate should not be visited on the client was rejected because it was never raised in the motion and submissions cannot substitute for evidence

Reasoning

The applicant blamed its previous counsel for failure to lodge the appeal only in written submissions. The Court held this was trial by ambush on the 1st respondent, since the issue was absent from the notice of motion, and reiterated that submissions cannot take the place of evidence.

p. 8

Legal principles established

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  • The discretion to extend time under Rule 4 must be exercised judicially, not arbitrarily, to serve substantial justice, and condonation of delay is an exceptional remedy, not a right
  • An applicant for extension of time must demonstrate an arguable appeal (with the word 'possibly' prefixed) and also give a satisfactory explanation for the delay
  • Submissions made by counsel cannot take the place of evidence and cannot introduce new issues not raised in the motion

Court orders

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  1. 1.The applicant's notice of motion application dated 25th June 2025 was dismissed with costs to the 1st respondent
On appeal from
Environment and Land Court
Nakuru ELC Petition No. 360 of 2017, Cove Investments Limited vs Johana Kiprotich Rona & Others
Jurisdiction invoked
Sections 3, 3A & 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules, 2022 (application before a single judge)

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, "Royal Sian Limited v Cove Investments Limited & 5 others", Case Analysis (2025). Civil Appeal (Application) No. E051 of 2022 (Application dated 25th June 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2028/eng@2025-11-27

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