Shah & another v Shah & 2 others

2. Notwithstanding what is described as the applicants’ diligence and preparedness, the process of ling the record of appeal and memorandum of appeal within time was frustrated by persistent and unforeseen technical failures in the Judiciary e-ling system, which rendered it impossible to complete the ling process, despite repeated attempts by their counsel; that the e-ling platform generated a system prompt requiring settlement of an alleged outstanding fee of Kshs.10/- in COACAPP No. E192 of 2026 as a precondition to ling the appeal, and all attempts by counsel to eect payment of the said amount were unsuccessful due to non-responsiveness of the e-ling platform. Subsequently, the applicants’ counsel promptly sought the intervention of the Court of Appeal Nairobi Registry on 30th April 2026, which generated a fresh invoice for Kshs.10/- that was immediately settled; However, despite making payment, the system anomaly persisted and continued to reect an earlier unpaid invoice dated 16th April 2026, eectively locking the applicants’ out of the ling process. 3. The applicants’ inability to resolve the said system error was further compounded by the fact that the nal days preceding the lapse of the statutory period fell on a public holiday (1st May 2026) and a Saturday (2nd May 2026), during which the Court registry was not available to provide the necessary technical assistance. Faced with circumstances entirely beyond its control, the applicants notied the Court of Appeal Registry through email correspondence on 2nd May 2026, of the prevailing technical challenges and its intention to le the appeal within time, and further copied the respondents in the said correspondence to ensure full disclosure and procedural fairness. Upon eventual resolution of the technical challenges, the applicants proceeded to le the record of appeal without undue delay. 4. In a bid to regularize the same by having it deemed as duly and properly led, the applicants led the notice of motion dated 25th May, 2026 seeking extension of time. It is their contention that the resultant delay in ling the record of appeal is not inordinate, being only 19 days beyond the prescribed period; and has been satisfactorily explained as having arisen from factors wholly outside their control. It is their contention that the intended appeal is not frivolous and raises arguable and weighty issues of both law and fact, particularly concerning the application and scope of the doctrine of res judicata, which merit interrogation and determination by this Court. Further, that the respondents will suer no prejudice whatsoever if the orders sought herein are granted, as any inconvenience occasioned can adequately be compensated by an award of costs; that in contrast, the applicants stand to suer grave prejudice if denied an opportunity to pursue the appeal, as they would be permanently shut out from challenging a decision that disposed of their suit without a hearing on the merits. 5. In opposing the application, the respondents by a replying adavit sworn by Faith Ndonga, a manager of the 2nd Respondent’s Legal and Debt Recovery Unit, acknowledges that whereas an application such as this falls within the discretion of the court to grant or decline, she is nonetheless persuaded that the court ought to consider the relevant circumstances which would occasion prejudice to the respondent, as the dispute which arose in the year 2022, was conclusively determined in HCComm Case No, E387 of 2022 Harsha Atul Kumar Magnalal Shah and Anor v Tusker Matresses and DTB; and that it was after delivery of that judgment that the applicants led successive suits namely Civil appeal (Application) No. E466 of 2025 Harsha Atul Kumar Magnalal Shah and Anor v Diamond Trust Bank, seeking stay of execution pending hearing of appeal against the decision in HCComm No. E387 of 2022, which application was dismissed in March 2026, also ELCC No E318 of 2025 Harsha Atul Kumar Magnalal Shah and Neel Atul Shah v Ankoor Shah and Diamond Trust Bank of Kenya Ltd and Anor, which was struck out on 2nd March 2026, as being res judicata; and is the subject of the pending appeal. Then again another matter Civil Application No. E192 of 2026 Harsha Atul Kumar Magnalal Shah and Neel Atul Shah v Ankoor Shah and 2 Others, also an application for stay which was due for hearing on 14th July, 2026; and HCComm No. E278 of 2026 Harsha Atulkumar https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1675/eng@2026-09-11 2

page 2 of 5

Magnalal Shah and another v DTB and Another where the applicant’s spouse led an application seeking injunctive orders. 6. The crux of the Notice of Motion dated 25th May 2026, seeks that this court be pleased to grant leave for the applicants/appellants to le Memorandum of Appeal and Record of Appeal out of time; that the Memorandum and Record of Appeal led on 21st May 2026 be deemed as duly led within the extended time and therefore properly on record; and that costs of this application be in the intended appeal. In their written submissions, the applicants, reiterate that Rule 4 of the Court of Appeal Rules, 2022, bestows upon this Court the power and discretion to extend the time limited by these Rules, whether before or after the doing of the act. Drawing from the case of Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, which set down the factors that a Court must consider before granting an extension of time to include the length of the delay; the reason for the delay; possibly the chances of the appeal succeeding if the application is granted;- and the degree of prejudice to the respondent if the application is granted, the applicant argues that the delay is not inordinate, as the record of appeal was led only nineteen (19) days outside the prescribed sixty-days period. 7. It is true that courts have consistently held that what constitutes inordinate delay depends on the circumstances of each case and that a short delay which has been satisfactorily explained ought not to deny a litigant access to the appellate process. How long was the delay in this instance? 19 (nineteen) days. What was the reason? From the explanation by the applicant’s counsel, there was a challenge in the court’s E- ling system; and by the time it was resolved, time had lapsed. There is no maximum or minimum period of delay set out under the law. However, the reason or reasons for the delay must be reasonable and plausible. For instance, in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, this Court stated: “ The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s ow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.” 8. Rule 4 of the Court of Appeal Rules gives this court unfettered discretion in deciding whether to grant an applicant extension of time to do a particular prescribed action, as provided under Rule 4 of the Court of Appeal Rules which provides as that: The court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended. 9. The cited rule does not provide factors the court ought to consider in an application for extension of time but courts have devised appropriate principles to be applied in achieving a ‘just’ decision in the circumstances of each case. Indeed, Leo Sila Mutiso vs Rose Wangari Mwangi (supra) held that the discretion of a single judge under Rule 4 is wide and unfettered, but must be exercised judiciously and upon reason, rather than arbitrarily, capriciously on a whim or sentiment (see Julius Kamau Kithaka vs Waruguru Kithaki & 2 Others CA No. 14 of 2013 [2013] eKLR. 10. The argument raised by the respondents in the written submission is that the explanation given for the delay is not satisfactory as the intended appeal arises from a pattern of re- litigation of matters that have already been determined; that there is no communication from the Judiciary conrming a systemwide E-ling failure nor any correspondence from the Deputy Registrar conrming that the applicants https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1675/eng@2026-09-11 3

page 3 of 5

were prevented from taking steps in a timely fashion due to issues beyond their control; and that the applicants have failed to demonstrate an exercise of all diligence. The respondents rely on the case of Andrew Kiplagat Chemaringo v Paul Kipkorir (supra) to urge this Court to nd that the applicants have failed to meet the status mentioned that there has to be valid plausible and satisfactory reasons for delay, before the Court can favourably exercise its discretion. 11. In the present matter, the delay was minimal and cannot reasonably be said to demonstrate indolence, inaction or disregard of the rules of the court. Indeed, the applicants have demonstrated a candid, detailed and satisfactory explanation for the delay to the eect that immediately after delivery of the impugned ruling on 2nd March 2026, the applicants lodged a Notice of Appeal on 3rd March 2026, and to quote them: “ thereby unequivocally demonstrating their intention to challenge the decision. Thereafter, they diligently prepared a complete Record of Appeal, drafted a comprehensive Memorandum of Appeal and secured the requisite ling fees well before the statutory deadline. The delay arose solely because of persistent technical failures within the Judiciary eling platform. The system generated a prompt requiring payment of an alleged outstanding sum of Kshs.10/- in a separate matter and despite repeated attempts, counsel for the Applicants was unable to resolve the issue through the platform. Upon encountering the problem, counsel promptly sought assistance from the Court of Appeal Registry, which generated a fresh invoice that was immediately settled. Even then, the system anomaly persisted and continued to lock the Applicants out of the ling process. The Applicants cannot be faulted for circumstances arising from technical failures within the court's own electronic ling infrastructure.” Contrary to the holes poked by the 2nd respondent, there is attached to the application screenshots marked JMK2 and JMK clearly conrming the technical glitch as well as the rejection on account of a Kshs.10/- claim. I have no doubt that the ling process was frustrated by persistent technical failures within the Judiciary e-ling system which rendered it impossible to successfully lodge the appeal documents within time. 12. On the issue of whether or not the Intended Appeal has no chance of success, this court is conscious of the fact that it is not the role of a single judge to determine the merits or otherwise of the Appeal. The case of Athuman Nasura Juma v Afwa Mohammed Ramadhan CA No. 227 of 2015 (UR) held: “ …this court has to be careful to ensure that the intended Appeal has merit or not is not an issue to be determined with nality by a single Judge”. 13. A perusal of the memorandum of appeal demonstrates that the applicant has an issue to address at the appeal, as to whether it is merited or will succeed, is not in my place a single judge to comment at this point. I shall say no more. In this case, ruling was delivered on 2nd March 2026; and the Notice of Appeal led on 3rd March 2026. The instant application was led on 25th May 2026. The delay has been adequately explained, and I do not consider it inordinate. The applicant, herein, has made the present application without undue delay and I nd that the applicant has met and satised the principles set out for this court to exercise its discretion in her favour and grant the extension sought. The record of Appeal as well as the memorandum of appeal which are already les shall be deemed as properly led and served. The costs shall abide the appeal DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OF SEPTEMBER 2026. H.A. OMONDI https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1675/eng@2026-09-11 4

page 4 of 5

………………………………… 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/2026/1675/eng@2026-09-11 5

page 5 of 5