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Court of AppealDismissedCivil Application E071 of 2026

Chap Chap Solution Co Ltd v Lilian Nguma Kalungo

Court of Appeal
25 September 2026
2,789 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed a company's bid to appeal late because it hid a previous failed attempt and gave shifting reasons for the delay.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kisumu (Asike-Makhandia, JA) on a Notice of Motion dated 31st March 2026 by Chap Chap Solution Co Ltd seeking extension of time to lodge and serve a Notice of Appeal against the ruling of Aburili, J in Kisumu HCCA No. E068 of 2024, together with stay of execution. The respondent opposed, showing the applicant had earlier filed a similar application (Kisumu HCC Misc. E219 of 2025) which was heard and dismissed with costs, and that the applicant had not disclosed it and now advanced a different explanation for the delay - first inability to raise filing fees of Kshs.106,800, then blame on former advocates. Applying the Leo Sila Mutiso principles as reaffirmed by the Supreme Court in Salat and County Executive of Kisumu, the judge found the delay of over a year lengthy and unexplained: Rule 120 could have been invoked for indigence, and no affidavit from the former advocates supported the blame. The applicant was found to have shown extreme lack of candour, forfeiting equitable relief and the benefit of the mistakes-of-counsel principle. The judge also held the prior proceedings amounted to a substantive determination, and that Articles 50 and 159(2)(d) could not rescue a party lacking candour. The prayer for stay was declined as outside a single judge's jurisdiction. The application was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted extension of time to lodge and serve a Notice of Appeal out of time
  2. 2.Whether the previous proceedings in Kisumu HCC Miscellaneous Application No. E219 of 2025 bar the present application
  3. 3.Whether the applicant's explanation for the delay is satisfactory and whether it approached the Court with candour
  4. 4.Whether the mistakes of counsel principle should excuse the delay

Key legal issues

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01

Whether the delay of over a year in instituting the intended appeal was satisfactorily explained

Holding

The delay was lengthy and the explanations given - inability to raise filing fees and blame on former advocates - were neither credible nor sustained; the applicant showed complete indifference.

Reasoning

The judgment was delivered on 27th January 2025 and the application filed on 31st March 2026. The applicant gave two inconsistent explanations: first inability to raise assessed filing fees of Kshs.106,800, then blame on former advocates. The court found Rule 120 could have been invoked for indigence, and no affidavit from the former advocates supported the blame. The delay therefore arose from indifference.

p. 4
02

Whether the applicant's failure to disclose the earlier dismissed application (Kisumu HCC Misc. E219 of 2025) disentitled it to discretionary relief

Holding

Yes. The applicant deliberately failed to disclose the earlier application and gave contrasting reasons for the delay, exhibiting extreme lack of candour; equity requires clean hands.

Reasoning

The respondent showed the applicant had previously filed a similar application blaming its former advocate, which was dismissed with costs. The applicant did not disclose this and advanced a new explanation. The court held that an application invoking equitable jurisdiction requires candour and clean hands, and the applicant's non-disclosure and shifting explanations were fatal to the exercise of discretion in its favour.

p. 4
03

Whether the previous proceedings constituted a bar to the present application

Holding

The court was satisfied the previous proceedings resulted in a substantive determination of the applicant's intended appeal, contrary to the applicant's assertion that they were decided on procedural grounds only.

Reasoning

The applicant argued the earlier dismissal was procedural and jurisdictional, so the doctrine of finality did not apply. The court, accepting the respondent's account that the earlier application was heard and dismissed on its merits with a finding that extension was unwarranted since a Notice of Appeal had been lodged in time, held the prior proceedings amounted to a substantive determination.

p. 5
04

Whether constitutional imperatives of access to justice and substantive justice (Articles 50 and 159(2)(d)) favoured the applicant

Holding

No. Those Articles do not excuse non-compliance and did not apply given the applicant's lack of candour.

Reasoning

The court acknowledged the obligation under Article 50 to facilitate access to justice and under Article 159(2)(d) to disregard procedural technicalities and lean towards merits. However, it held these imperatives do not excuse non-compliance with procedural requirements and, in light of the applicant's demonstrated lack of candour, the Articles could not be invoked to rescue the application.

p. 5

Legal principles established

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  • The discretion under Rule 4 to extend time is unfettered but must be exercised judiciously upon sound legal principles, considering length of delay, reason for delay, arguability of the appeal and prejudice to the respondent.
  • Extension of time is an equitable remedy available only to a deserving party who satisfactorily explains the delay and approaches the Court with candour and clean hands.
  • The mistakes-of-counsel principle applies only where the applicant is candid with the court; a litigant who gives inconsistent explanations forfeits its benefit.
  • A litigant pleading financial inability to pay filing fees should invoke Rule 120 of the Court of Appeal Rules permitting indigent persons to institute appeals without paying standard fees.

Court orders

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  1. 1.The Notice of Motion dated 31st March, 2026 is dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court of Kenya at Kisumu
HCCA No. E068 of 2024
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022; sections 3A and 3B of the Appellate Jurisdiction Act (single judge under the Rules)

Relief refused

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Extension of time to lodge and serve the Notice of Appeal

Considerable unexplained delay, lack of candour, inconsistent explanations, and prejudice to the respondent not compensable by costs

p. 5

Stay of execution pending the intended appeal

Outside the jurisdiction of the Court as currently constituted of a single judge

p. 3

Costs

The application is dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Under Rule 4 of the Court of Appeal Rules, this Court is vested with an unfettered discretion to extend time for the doing of any act authorized or required by the Rules. However, like all judicial discretions, the power must be exercised judiciously and upon sound legal principles.
p. 3Nature of Rule 4 discretion
extension of time is not a right but an equitable remedy available only to a deserving party who satisfactorily explains the delay
p. 4Extension of time as equitable remedy
Indeed, it is said that whomsoever comes to equity must with clean hands.
p. 4Clean hands in equitable jurisdiction
However, this only applicable where the applicant is candid with the court and as I have already demonstrated, the applicant on this scores zero.
p. 5Limits of the mistakes-of-counsel principle
Accordingly, this application is devoid of merit and is accordingly dismissed with costs to the respondent.
p. 5Final orders / disposition

Issues in the judgment

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minor

Conflicting dates of delivery within the ruling

minor

Date of the High Court judgment stated inconsistently

minor

Incomplete sentence in key finding on candour

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, "Chap Chap Solution Co Ltd v Lilian Nguma Kalungo", Case Analysis (2026). Civil Application E071 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1799/eng@2026-09-25

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