Alice Nduta Mburu & 5 Others v Barclays Bank of Kenya Limited

of Rita Wangui, advocate, in which the procedural history of the matter Page 2 of

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which began with the High Court Civil Suit No. 237 of 2007 is set out culminating with the judgment of this Court of 20 th September 2019. Explanation is given for the false starts in a bid to have the matter escalated to the Supreme Court in what is described as “innocent inadvertent errors on the part of counsel”. 2. The application came up for hearing before me on 19th November 2025. There was no appearance for the applicants. Learned counsel Mr. Biko Angwenyi appeared for the respondent. However, in the applicants’ written submissions in support of the application, it is urged that the applicants have been seeking justice in this dispute for nearly 38 years; that the procedural delays were inadvertent and largely driven by court registry errors, ICT system issues, and counsel mistakes rather than bad faith; that an application dated 18 th November 2019 was filed 48 days late due to counsel’s mistaken understanding of appeal timeline rules and there was delay in delivery of the ruling of the Court which was dismissed on 12th April 2024; that the subsequent motion of 11th November 2024 was delayed because registry staff failed Page 3 of

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to promptly notify counsel via the e-filing platform that it had been filed under an old case number; that Page 4 of

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furthermore, processing payment for the 15 th April 2025 application took over two weeks due to court ICT portal payment acceptance failures. 3. Citing Articles 48, 50 and 159(2)(d) of the Constitution it was urged that that justice should be administered without undue regard to procedural technicalities and that under Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules, the Court has unfettered judicial discretion to extend time limits. In support, reliance was placed on decisions in Paul Wanjohi Mathenge vs. Duncan Gichane Mathenge (2013) KECA 199 (KLR) and Salat vs. IEBC & 7 Others (2014) KESC 12(KLR) regarding the legal principles governing applications for extension of time such as this. 4. Counsel concluded by urging that the Court should not penalize the applicants for technical procedural errors outside their control; that their intended appeal to the Supreme Court appeal is arguable, raises issues of general public importance, and that allowing the extension will cause no prejudice to the respondent. Page 5 of

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5. Learned counsel Mr. Angwenyi on the other hand briefly highlighting the respondent’s written submissions in opposition Page 6 of

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to the application urged that the application violates Rule 57 of the Court of Appeal Rules; that a party dissatisfied with a decision of a Single Judge is required to file a Reference within 7 days, rather than lodging a new application for extension of time; that the re-filing of a similar application for extension circumvents strict statutory timelines, offends the principle of res judicata, and constitutes an abuse of court process; that the Court previously noted in its ruling of 28 th February 2025 that an earlier application was filed 7 months late without a credible explanation; that despite this finding, the applicants incurred a further delay of 46 days before filing the present motion; that blaming registry administrative errors or mistakes by counsel does not excuse neglect, as litigants owe a continuing duty of diligence; that the reliance by the applicant on constitutional provisions cited is misplaced. It was submitted that the overriding objective principle is intended to prevent technicalities from hindering justice, not to license procedural disregard, dilatory tactics, or counsel negligence. 6. It was submitted that the present application is the applicants’ Page 7 of

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third attempt to revive a long-concluded matter; that granting Page 8 of

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the applicants further indulgence would unfairly prejudice the respondent which continues to incur costs and uncertainty. Cited was the case of Muringa Company Limited vs. Archdiocese of Nairobi Registered Trustees [2020] KECA 761 (KLR). 7. Moreover, it was urged, the underlying dispute originated from a Mareva injunction and tracing orders issued on 9th October 1986 concerning cheque encashments between private parties; a matter strictly within private commercial law and raises no constitutional issues or matters of general public importance; that under the principles in Steyn vs. Ruscone (Application 4 of 2012) [2013] KESC 11 (KLR) a matter of general public importance must transcend the specific interests of the litigants and assertions of personal hardship or length of litigation do not satisfy this criterion; and that the legal principles governing time extension discretion are well-settled and raise no novel jurisprudential questions for reference to the Supreme Court. With that, counsel urged the Court to refuse to exercise its discretion in favour of the applicants and dismiss the application in its Page 9 of

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entirety with costs. Page 10

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8. I have considered the application, the supporting affidavit and the rival submissions. The issue I need to determine is whether the applicants’ application for extension of time is merited. In that regard, and as already noted, the judgment of this Court that the applicants intend to challenge before the Supreme Court was delivered on 20th September 2019. The first effort made by the applicants to escalate the matter to the Supreme Court was by an application dated 18th November 2019. In that application, the applicants sought leave of this Court to appeal against its judgment of 20 th September 2019. That application was however struck out by the Court in its ruling of 12 th April 2024 because it was “incompetent, as it was filed outside the stipulated period.” 9. Undeterred, approximately five months later, the applicants, then moved the Court under Rule 4 by an application dated 11th November 2024 seeking extension of time to file an application for certification and leave to apply to the Supreme Court. That application was heard, determined and dismissed in a ruling of the Court (Muchelule, JA.) delivered on 28 th February 2025. Page 11

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10. About two months later, the applicants filed the present application dated 16th April 2025 seeking the very orders that Page 12

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were declined by the Court in its ruling delivered on 28 th February 2025. In effect, the applicants seek to re-litigate the very matter that has already been adjudicated by the Court in the ruling of 28th February 2025. The respondent is therefore quite right in terming this second application as an abuse of the court process as it is not a reference, as one might have envisaged, under Rule 57 of the Court of Appeal Rules. The matter is res judicata. Having concluded thus, I need not consider the other matters raised in the application. 11. I therefore decline to exercise the Court’s discretion in favour of the applicants and hereby dismiss the application dated dated 16th April 2025 with costs to the respondent. Finally, I regret and apologize for the oversight in the delivery of this ruling. Dated and delivered at Nairobi this 25 th day of September, 2026. S. GATEMBU KAIRU, FCIArb, CArb. ………………………………. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed Page 13

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DEPUTY REGISTRAR. Page 14

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