Southern Shield Holdings Limited v Titus Makhanu Associates Advocates & another (Civil Application E440 of 2025) [2026] KECA 120 (KLR)
The bottom line
#Kenya's Court of Appeal let Southern Shield file its appeal late because court registry delays, not the company, caused the holdup.
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 applicant should be granted leave to file and serve the record of appeal out of time under Rule 4 of the Court of Appeal Rules, having regard to the length of and reasons for the delay, arguability, and prejudice to the respondents
Key legal issues
#Extension of time to file and serve a record of appeal under Rule 4
Extension granted where the delay was occasioned by the registry's delay in supplying proceedings, certified order and Certificate of Delay, the applicant acted diligently, and no prejudice to the respondents was demonstrated.
The court applied the Fakir Mohamed factors: period of delay, reasons for delay, arguability and prejudice. The applicant filed its notice of appeal and bespeaking letter within time, benefiting from the proviso to Rule 84(1). The Certificate of Delay excluded 127 days of registry preparation time; follow-up letters evidenced diligence; the application was lodged only eight days after the last crucial document. No prejudice was alleged against the respondents, so the plea for extension was deserving.
Effect of compliance with the decision under appeal on an extension application
Alleged compliance with the High Court order is irrelevant at the extension stage and is for the court hearing the intended appeal.
The 1st respondent argued the appeal was moot because the applicant paid the decretal sum after negotiations and withdrew stay applications by consent. The court held this submission does not bear on whether extension should be granted; it is for the appeal court to decide. The court therefore did not determine whether the appeal was bona fide or arguable on the merits.
Legal principles established
#- A litigant who lodges a notice of appeal and serves a written letter bespeaking proceedings within the prescribed timelines benefits from the suspensory proviso to Rule 84(1), excluding registry preparation time from the computation of time.
- Delay attributable to the registry, evidenced by diligent follow-ups, is not the conduct of an indolent litigant and does not disentitle an applicant from an extension of time.
- Contention that an intended appeal has been overtaken by events (e.g. compliance with the order under appeal) is a matter for the court hearing the intended appeal and has no bearing on an extension-of-time application.
Court orders
#- 1.The application dated 18th July 2025 is allowed
- 2.The applicant shall within forty-five (45) days of the Ruling file and serve the record of appeal
- 3.Costs of the application shall be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya, Commercial and Tax Division
- HCCOMMMISC No. E145 of 2021
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (discretion to extend time)
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.
Ultimately the application dated 18th July, 2025 is for allowing, as I do. The applicant shall within fortyfive (45) days of this Ruling file and serve the record of appeal. Costs of this application shall be in the intended appeal.
Since the applicant served the respondents with the letter bespeaking for proceedings, they benefit from the suspensory proviso to sub-rule 1 of rule 84.
This is not the conduct of an indolent litigant.
the applicant has already complied with the High Court order dated 27th September, 2024 by paying the decretal sum rendering the intended appeal otiose is matter for the Court hearing the intended appeal to decide and has no bearing on the application this Court is currently asked to resolve.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Southern Shield Holdings Limited v Titus Makhanu Associates Advocates & another (Civil Application E440 of 2025) [2026] KECA 120 (KLR)", Case Analysis (2026). Civil Application (notice of motion dated 18th July 2025) arising from HCCOMMMISC No. E145 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/120/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.