Titus Makhanu & Associates Advocates v Hall Equitorial Limited (Civil Application E625 of 2025) [2026] KECA 710 (KLR)

3. The applicant further contends that the High Court eventually notified him on 11th August 2025 that the proceedings and ruling were ready for collection, though the ruling was initially not certified as requested and a certified copy was only issued on 2nd September 2025. Thereafter, the applicant applied for a certificate of delay on 8th September 2025 which, after several follow ups, was issued by the High Court on 24th October 2025. The applicant therefore contends that the delay in filing the record of appeal was not intentional but was caused by the time taken by the registry to prepare the requisite documents necessary for instituting the appeal. 4. He further asserts that the intended appeal is arguable and raises serious issues, including whether the High Court erred in proceeding to determine the originating summons despite a pending application and preliminary objection challenging the court’s jurisdiction and the applicant’s right to be heard. Additionally the applicant maintains that the respondent will not suffer prejudice if the extension sought is granted, as the respondent will still have the opportunity to respond to the intended appeal on its merits. 5. Unfortunately this ruling is without the benefit of any input from the respondent who did not file any response in opposition to the application. 6. Having read the affidavits and submissions filed by the applicant, what follows is to consider whether the appellant has met the threshold for grant of the extension sought. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi, Civil Application No. 251 of 1997, this Court stated: “ It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well stated that in general the matters which this Court takes into account in deciding whether to grant an extension of time, are first, the length of the delay, secondly, the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted, and fourthly, the degree of prejudice to the respondent if the application is granted." 7. On the length of the delay, the subject ruling was delivered on 27th March 2025 and the notice of appeal filed the very next day, on 28th March 2025. Under rule 84 of the Rules of this Court, the record of appeal ought to have been lodged within sixty days from the date of filing the notice of appeal, subject to the exclusion of any period certified by the High Court as having been required for preparation and delivery of the proceedings. The present application was filed on 28th October 2025. On the face of it, therefore, there was delay in lodging the record of appeal beyond the period prescribed by the Rules. 8. Turning to the explanation offered for that delay, the applicant attributes it to the time taken by the High Court registry to prepare and supply certified copies of the proceedings and the ruling. It is clear from material placed before me that the applicant applied for the proceedings immediately after filing the notice of appeal and wrote follow up letters to the registry on 7th April 2025 and 31st July 2025. The registry eventually notified the applicant on 11th August 2025, that the proceedings and ruling were ready for collection, although the ruling was not initially certified. Indeed a certified copy was only issued on 2nd September 2025. The applicant then applied for a certificate of delay on 8th September 2025 which was issued on 24th October 2025. In those circumstances, the delay appears to have been largely attributable to the time taken by the registry to prepare and certify the documents necessary for the institution of the appeal. 9. As regards the intended appeal, it is not for a single Judge at this stage to make definitive findings on the prospects of success. It suffices to state that from the grounds cited in the affidavit in support of the application, the applicant seeks to challenge, among other things, the decision of the High Court https://new.kenyalaw.org/akn/ke/judgment/keca/2026/710/eng@2026-03-25 2

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to determine the originating summons notwithstanding the existence of a pending application and preliminary objection questioning the court’s jurisdiction. This issue cannot be said to be frivolous and, in my view, raises arguable point deserving of consideration by this Court. 10. With respect to prejudice, the respondent has not opposed the application and no material has been placed before this Court to demonstrate that the respondent will suffer prejudice if the extension sought is granted. On the contrary, the respondent will still have the opportunity to respond to the intended appeal and to ventilate its case fully, before this Court. In the circumstances, any inconvenience that may arise from the extension of time can adequately be compensated by an award of costs. 11. Having carefully considered all the foregoing and bearing in mind that the discretion under rule 4 of the Rules of this Court as intended to be exercised so as to facilitate the just determination of disputes on their merits, I am satisfied that this is a proper case in which the discretion of this Court should be exercised in favour of the applicant. Consequently, I allow this application and direct that the record of appeal be filed and served within thirty (30) days from the date of delivery of this ruling. The costs of this application shall abide the outcome of the appeal. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF MARCH, 2026 PAUL LILAN ......................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/710/eng@2026-03-25 3

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