Mturi & another v Diamond Trust Bank Kenya Limited & another (Civil Appeal (Application) E142 of 2025) [2026] KECA 54 (KLR)
The bottom line
#Kenya's Court of Appeal gave guarantors whose property was auctioned a second chance to file their appeal, ruling delays explained by earlier court decisions can be forgiven.
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 applicants have satisfied the Court that they are entitled to extension and/or enlargement of time for filing a Notice and Record of Appeal
Key legal issues
#Whether the applicants were entitled to extension of time to file and serve a Notice and Record of Appeal
The application was allowed. The delay was not deliberate and was satisfactorily explained, being wholly dependent on the outcome of the respondents' successful application to strike out the earlier Notice of Appeal. No prejudice would be suffered by the respondents, who had already perfected the judgment by selling the property, and the propriety of the auction is for the full bench.
The Court applied the settled principles for extension of time: length of delay, reasons for delay, prejudice, and whether the appeal possibly has chances of success. It held that time could only be computed from the filing of the fresh Notice and Record of Appeal, since the present application was wholly dependent on the ruling that struck out the earlier Notice. It declined to delve into the merits, holding that assessment of arguability is a preserve of a full bench, and found no prejudice warranting refusal, as costs would compensate the successful party.
Legal principles established
#- A single Judge of the Court of Appeal may not finally determine the merits of an intended appeal when exercising the discretion to extend time; the consideration is only whether the appeal possibly has chances of success.
- There is no minimum or maximum period of delay for extension of time; the delay must be satisfactorily explained with plausible and valid reasons.
- Time for computing delay in a fresh application for extension of time runs from when the fresh Notice of Appeal and Record of Appeal were filed, where the earlier Notice was struck out and the fresh filing was dependent on that ruling.
Court orders
#- 1.The applicants be and are hereby granted leave to file and serve a Notice and Record of Appeal out of time
- 2.The Notice and Record of Appeal shall be filed within seven (7) days from the date of the Ruling
- 3.Orders (a) and (b) shall automatically stand vacated if the applicants do not comply as directed
- 4.Costs shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya (Mombasa)
- Mombasa HCCOM No. E003 of 2025
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2022; Sections 3A and 3B of the Appellate Jurisdiction Act
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.
The applicants be and are hereby granted leave to file and serve a Notice and Record of Appeal out time.
The Notice and Record of Appeal shall be filed within seven (7) days from the date of this Ruling.
A plausible and satisfactory explanation for delay is the key that unlocks the court’s fiow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.
it is not within the bounds of the jurisdiction of a single Judge to delve into the merits or demerits of the intended appeal as this is a preserve of a full bench
Costs shall abide the outcome of the appeal.
Issues in the judgment
#The judgment states the Record of Appeal was filed on 18th July 2022, which is inconsistent with the chronology (ruling of 1st July 2025 and Notice of Appeal dated 1st July 2025); it appears to be a typographical error for 2025.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mturi & another v Diamond Trust Bank Kenya Limited & another (Civil Appeal (Application) E142 of 2025) [2026] KECA 54 (KLR)", Case Analysis (2026). Civil Application No. E030 of 2025 (as referenced; Notice of Motion dated 30th July 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/54/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.