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Court of AppealAllowedCivil Application Sup E413 of 2020

Kibe & 8 others v Barclays Bank of Kenya Limited

Court of Appeal
25 September 2026
2,866 words in judgment
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The bottom line

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Kenya's Court of Appeal excused an 18-day filing delay caused by a lawyer's legal mistake, allowing the case to proceed to the Supreme Court.

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 Nairobi by Lessit, JA on an application under Article 163(4)(b) of the Constitution and rules 4, 41 and 42 of the Court of Appeal Rules, seeking enlargement of time and certification that matters of general public importance are involved in an intended appeal to the Supreme Court against the Court of Appeal's judgment of 6th November 2020 in Civil Appeal No. 440 of 2018 (Koome, Makhandia & Kantai, JJ.A.). The application, filed on 24th December 2020, was some 18 days out of the 30-day period prescribed by rule 41(2). The supporting affidavit did not explain the delay; the explanation appeared in a further affidavit sworn about ten months later by counsel Charles Kanjama, attributing the delay to his associate's mistaken reliance on the Supreme Court Rules instead of the Court of Appeal Rules. The respondent objected that rule 40, invoked by the applicants, governs criminal matters, and that counsel's ignorance of the law is not a reasonable explanation. The Judge held the erroneous invocation curable under Article 159(2)(d), applied the Salat and Leo Sila Mutiso principles, and following Belinda Murai v Amos Wainaina held the counsel's blunder excusable, the delay not inordinate, and the respondent unprejudiced. The application was allowed with no order as to costs. This ruling does not disturb the decision below; it only opens the way for the certification application to proceed before the full bench.

Key legal issues

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01

Whether delay occasioned by counsel's ignorance of the applicable law is an excusable reason for extension of time

Holding

Yes - the 18-day delay caused by the associate's misapprehension of the applicable rules was a blunder amounting to a mistake of law, excusable in the interests of justice.

Reasoning

Relying on Belinda Murai & 9 Others v Amos Wainaina, which quoted Tompkins J in White v Arthur Nicol, the single Judge held that ignorance of the law can constitute a mistake of law. Counsel took responsibility for the associate's blunder. The delay of 18 days was not inordinate, and the respondent would suffer no prejudice since it would have an opportunity to respond to the intended application.

02

Whether invocation of the wrong rule (rule 40, applicable to criminal matters) defeats the application

Holding

No - the applicants had properly invoked Article 163(4)(b) and rules 41 and 42; the erroneous invocation of rule 40 was a curable procedural technicality.

Reasoning

The respondent objected that rule 40 governs criminal matters. The Judge accepted that contention but noted the application was also anchored on Article 163(4)(b) of the Constitution and rules 41 and 42, which govern civil certification applications. Guided by Article 159(2)(d) on procedural technicalities, the error was held curable as it did not go to the root of the application.

p. 4

Legal principles established

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  • The discretion to extend time under rule 4 is wide but must be exercised judicially, not on whim, sympathy or caprice.
  • A blunder on a point of law by counsel, including ignorance of the applicable law, may constitute an excusable mistake where the interests of justice so dictate.
  • Erroneous invocation of a wrong rule does not go to the root of an application where the correct provisions are also invoked, and is curable under Article 159(2)(d).

Court orders

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  1. 1.Extension of time granted for filing the application for certification and leave to appeal to the Supreme Court
  2. 2.Notice of motion dated 24th December 2020 allowed with no order as to costs
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. 440 of 2018
Jurisdiction invoked
Article 163(4)(b) of the Constitution; Rules 4, 41 and 42 of the Court of Appeal Rules

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, "Kibe & 8 others v Barclays Bank of Kenya Limited", Case Analysis (2026). Civil Application Sup E413 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1808/eng@2026-09-25

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