Wangui & 4 others v NCBA Bank Kenya Plc (Civil Application E792 of 2024) [2026] KECA 843 (KLR)
The bottom line
#Kenya's Court of Appeal let five applicants file a late Notice of Appeal against a bank judgment, but refused to extend time for their Memorandum of Appeal.
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 application is res judicata given the prior ruling in Civil Appeal (Application) No. E858 of 2023
- 2.Whether extension of time can be granted to file a Memorandum of Appeal in the absence of a record of appeal
- 3.Whether the applicants have demonstrated sufficient cause to warrant extension of time to file a Notice of Appeal out of time
Key legal issues
#Res judicata as a bar to a second extension of time application
The application is not res judicata because the earlier ruling of 20th September 2024 struck out the prior application without addressing its merits.
Applying section 7 of the Civil Procedure Act as summarised in John Florence Maritime Services and Dina Management, the elements of res judicata are conjunctive and require a prior final judgment on the merits by a court of competent jurisdiction with identical parties, subject matter and cause of action. Although the parties and issue were the same, the earlier ruling expressly refrained from addressing the merits, so the res judicata plea fails and the Court has jurisdiction.
Extension of time for a Memorandum of Appeal without a record of appeal
Extension of time to file a Memorandum of Appeal cannot be granted in the absence of a record of appeal.
Under Rule 84, an appeal is instituted by lodging a memorandum of appeal and record of appeal within sixty days of the notice of appeal. Granting an extension for the memorandum alone where no record of appeal exists would short circuit and evade the additional requirements of Rule 84 that an out-of-time applicant must demonstrate. The Court therefore confined itself to the Notice of Appeal prayer.
Whether extension of time to file a Notice of Appeal should be granted
Extension granted: sufficient cause for the delay was demonstrated, the delay was not inordinate, and the respondent would suffer no prejudice.
Applying the Salat principles under Rule 4, the Court found the explanation of an honest oversight by the applicants' advocates plausible and reasonable; the applicants took timeous steps, filing their first application about two months after the judgment and the instant application within days of the prior ruling. The respondent, a reputable banking institution, demonstrated no prejudice if the extension were granted, whereas refusal would deny the applicants a hearing on the merits.
Legal principles established
#- Extension of time to file a Memorandum of Appeal cannot be granted in the absence of a record of appeal, as this would evade the additional requirements of Rule 84.
- For res judicata, the prior decision must have been on the merits; a ruling that struck out an application without addressing its merits does not create res judicata.
Court orders
#- 1.Leave granted to the applicants to file and serve a Notice of Appeal out of time from the judgment delivered on 13th October 2023 by the High Court at Nairobi (F. Mugambi J.) in High Court Civil Suit No. 884 of 2021
- 2.No order as to the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- High Court Civil Suit No. 884 of 2021
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2022 (extension of time)
Relief refused
#Extension of time to file a Memorandum of Appeal
Such extension cannot be given in the absence of a record of appeal, as its effect would be to short circuit and evade the additional requirements of Rule 84
Costs
There shall be no order as to the costs of the application.
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 application herein is accordingly not res judicata.
I am of the view that such extension cannot be given as its efiect would be to short circuit and evade the additional requirements of Rule 84 which an applicant who is out of time in filing an appeal may be required to demonstrate.
I am therefore persuaded that suficient cause for the delay in filing the Notice of Appeal has been demonstrated by the applicants, and that the delay was not inordinate.
Consequently, the application dated 25th September 2024 is found to be merited to the extent that the applicants are granted leave to file and serve a Notice of Appeal out of time from the judgment delivered on 13th October 2023 by the High Court at Nairobi (F. Mugambi J.) in High Court Civil Suit No. 884 of 2021.
There shall be no order as to the costs of the application.
Issues in the judgment
#Internal inconsistency on whether the delay was inordinate: the Court describes the applicants' steps as timeous and the delay not inordinate, yet paragraph 2 records the respondent's contention of no plausible reasons for the delay, which the Court then accepts as disputed but plausible.
The judgment describes Chemaringo as a Supreme Court decision immediately after referring to Supreme Court pronouncements, but the paragraph context is ambiguous; the citation treatment of that case cannot be confirmed with certainty.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wangui & 4 others v NCBA Bank Kenya Plc (Civil Application E792 of 2024) [2026] KECA 843 (KLR)", Case Analysis (2026). Court of Appeal Application dated 25th September 2024 (arising from High Court Civil Suit No. 884 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/843/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.