Top Image Africa Limited v UBA Kenya Bank Limited
The bottom line
#Kenya's Court of Appeal refused to forgive a company's one-year delay in filing appeal papers because it offered no credible, documented explanation.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the memorandum and record of appeal was satisfactorily explained
The delay of over a year was inordinate and unexplained; the applicant's affidavit and submissions gave inconsistent accounts and lacked supporting documents such as a letter bespeaking proceedings or a certificate of delay.
The applicant attributed the delay to counsel and later to the deponent's travel, but did not state when she travelled or returned, and attached no chronology, letter bespeaking proceedings or certificate of delay. The court found the account inconsistent, suspect and insufficient to meet the rule 4 threshold, overwhelmed by the respondent's rebuttal.
The principles governing exercise of discretion under rule 4
Extension of time is an equitable remedy available to a deserving party; the applicant must lay a basis to the court's satisfaction, explain the delay, and show absence of prejudice and undue delay in bringing the application.
The court adopted the settled principles in Nicholas Kiptoo Korir Arap Salat vs IEBC, supplemented by the Julius Kamau Kithaka consideration of whether the intended appeal is prima facie arguable or frivolous, and Imperial Bank on the legislative history showing the applicant must establish a basis for the discretion.
Whether the single judge could assess the merits of the intended appeal
The circumscribed mandate of a single judge does not extend to determining the merits of the intended appeal with finality.
Relying on Athuman Nasura Juma v Afwa Mohammed Ramadhan, the judge declined to make definitive findings on the asserted high chances of success, confining himself to whether the appeal was a mere frivolity for purposes of the rule 4 factors.
Legal principles established
#- Although rule 4 confers unfettered discretion to extend time, that discretion must be exercised judiciously and upon reason, not arbitrarily or on a whim.
- An applicant seeking extension of time bears the burden of establishing, on a balance of probabilities, justifiable reasons for the delay.
- A single judge of the Court of Appeal cannot determine the merits or arguability of an intended appeal with finality when dealing with a rule 4 application.
Court orders
#- 1.The application dated 23rd February 2026 seeking extension of time is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- High Court of Kenya, Commercial and Tax Division
- Commercial Appeal E162 of 2022
- Jurisdiction invoked
- Rules 4 and 47 of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Top Image Africa Limited v UBA Kenya Bank Limited", Case Analysis (2026). Civil Application No. E090 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1822/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.