Flavemart Enterprises Ltd v Kenya Railways Corporation

withdrawal, the applicant still desirous of challenging the impugned judgment and decree took steps towards instituting a fresh appeal. 4. The applicant depones that immediately after the withdrawal of the previous appeal, it led an application seeking extension of time and stay of execution being Kisumu Civil Application No. E171 of 2024. However, when the application came up for plenary hearing on 4th March, 2025, the Court expressed reservations regarding the omnibus nature of the application, prompting the applicant to withdraw the same and le the present application. 5. The applicant contends that the failure to serve the previous Record of Appeal within time arose from an inadvertent mistake of counsel and was neither deliberate nor intended to obstruct the course of justice. It is maintained that the intended appeal is arguable and raises substantial issues deserving consideration by the Court. The applicant also asserts that unless the orders sought are granted, it faces the imminent risk of eviction from the suit property, a circumstance that may render the intended appeal nugatory. 6. The application is supported by the adavit of Peter Ochieng Okore sworn on 6th March, 2025, in which it merely reiterates and expounds on the aforesaid grounds. There is no need to rehash the same therefor. 7. The application is opposed by the respondent through the Replying Adavit of Stanley Gitari, its principal legal ocer in which he depones that the application is bereft of merit and undeserving of the Court’s discretion. He depones that although the applicant lodged a Notice of Appeal and subsequently led a Record of Appeal in Civil Appeal No. 66 of 2020, it failed to serve the same upon the respondent for over four years despite having obtained interim orders of stay pending the hearing and determination of the appeal. He further depones that the respondent repeatedly sought service of the Record of Appeal and raised the issue during the several case management sessions before the Deputy Registrar, but the applicant failed to take the necessary steps until shortly before the appeal was scheduled for hearing. 8. According to the deponent, the appeal was ultimately withdrawn on 18th November, 2024, after the applicant conceded that the Record of Appeal had been served out of time. He contends that the delay has not been satisfactorily explained, that both the applicant and its advocates were indolent in prosecuting the appeal, and that the intended appeal lacks prospects of success. He further avers that it continues to be deprived of the fruits of its judgment and would suer prejudice if the orders sought are granted, whereas the applicant has not demonstrated any prejudice warranting the exercise of the Court’s wide and unfettered discretion in its favour. Consequently, it urges the Court to nd that the application has been brought in bad faith, is an abuse of the court process, and dismiss it with costs. 9. Both parties led written submissions. The applicant’s submissions were to the eect this Court should exercise its discretion under Rule 4 of the Court of Appeal Rules and extend time for the institution of the intended appeal. Counsel relied on Thuita Mwangi v Kenya Airways Ltd [2003] KECA 201 (KLR), which adopted the principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999) EA 231 for the proposition that in applications for extension of time the Court considers, inter alia, the length of the delay, the reason for the delay, the chances of the intended appeal succeeding and the degree of prejudice likely to be occasioned to the respondent. Counsel further cited Philip Keipto Chemwolo & Another v Augustine Kubende [1986] KECA 87, where the Court emphasized that mistakes and blunders by counsel do occur and, absent fraud or an intention to overreach, such errors should not ordinarily deprive a litigant of the opportunity to have his case determined on the merits. It was therefore submitted that the Court should lean in favour of substantive justice and permit the applicant to pursue its intended appeal. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1743/eng@2026-09-21 2

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10. In response, the respondent’s submissions were to the eect that the applicant had failed to satisfy the settled criteria for extension of time. Counsel similarly relied on Thuita Mwangi v Kenya Airways Ltd (supra) and Leo Sila Mutiso v Rose Hellen Wangari Mwangi (supra), in submitting that the discretion under Rule 4 must be exercised judicially upon consideration of the length of delay, the explanation tendered, the prospects of success of the intended appeal and the prejudice to be suered by the respondent. The respondent argued that no satisfactory explanation had been oered for the prolonged delay and relied on Rajesh Rughani v Fifty Investments Limited & Kembi & Muhia Advocates [2016] eKLR, for the proposition that both counsel and litigants bear responsibility for the conduct of litigation and that indolence or inaction cannot be excused merely by attributing the fault to counsel. 11. Counsel further cited Charles Kiarie Kiarie & Others v Administrators of the Estate of John Wallace Mathare & Others [2013] eKLR and Munyao Maina v Hiram Gathiha Maina [2013] eKLR, to underscore the legal principles relating to proof of title and the obligation of a claimant to establish the root of title when challenged. On that basis, it was submitted that the intended appeal had not been shown to be arguable and that extension of time would occasion prejudice to the respondent, who was entitled to enjoy the fruits of its judgment without further delay. 12. The application before me is one for extension of time within which to le and serve a Notice of Appeal and Record of Appeal against the judgment and decree of the Environment and Land Court. The jurisdiction of this Court to entertain such an application is donated by Rule 4 of the Court of Appeal Rules, which grants the Court wide and unfettered discretion to extend time for the doing of any act authorized or required by the Rules. 13. The principles that guide in such an exercise are now settled. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi (supra), the Court held that: “ It is now well settled that the decision is essentially discretionary. It is also well settled that in general, the matters which this Court takes into account in deciding whether to grant an extension of time are rst the length of 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". 14. These principles were rearmed in Thuita Mwangi v Kenya Airways Ltd (supra), where the Court emphasized that the factors are not exhaustive and that each case must turn on its own peculiar circumstances. 15. The discretion under Rule 4, though wide, must be exercised judicially and on the basis of sound reason rather than sympathy or caprice. An applicant must therefore demonstrate sucient cause to warrant the Court's intervention. 16. I have carefully considered the application, the adavits on record, and the rival submissions by the parties. It is not disputed that following the judgment of the Environment and Land Court, the applicant lodged a Notice of Appeal and subsequently led an appeal before this Court. The appeal, however, did not proceed to determination and was withdrawn after it emerged that the Record of Appeal had not been served within the period prescribed by the Rules. The present application was thereafter led seeking leave to commence the appellate process afresh out of time. 17. The applicant attributes the failure to serve the Record of Appeal to an inadvertent mistake on the part of its counsel. It is contended that the omission was not deliberate and should not be visited upon the applicant, who has consistently manifested an intention to challenge the impugned judgment and https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1743/eng@2026-09-21 3

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decree on appeal. The respondent, on the other hand, contends that the explanation is unsatisfactory and that the delay spanning several years from the date of judgment and decree has not been adequately accounted for. 18. A consideration of the material before the Court shows that the issue is not merely a short procedural lapse. The judgment and decree sought to be challenged was delivered in November 2019, whereas the present application was led in March 2025. Although the applicant points to the existence of the earlier appeal as evidence of diligence, the fact remains that the Court must interrogate whether the failure to comply with the Rules and the subsequent delay in seeking the Court's indulgence have been satisfactorily explained. 19. The explanation oered is that counsel inadvertently failed to eect service of the Record of Appeal within time. Mistake of counsel is a factor that the Court may take into account. Indeed, in Philip Keipto Chemwolo & another v Augustine Kubende (supra), the Court observed that blunders will continue to occur and that unless there is fraud or intention to overreach, errors of counsel should not ordinarily shut a litigant out from the seat of justice forever. However, it is equally true that not every mistake by counsel should attract the Court's discretion. The omission must be satisfactorily explained and the applicant must demonstrate diligence in the prosecution of the matter. 20. In the present case, I note that the applicant had already invoked the appellate jurisdiction of this Court by ling an appeal. The appeal was however not struck out for want of merit but was withdrawn because of failure to comply with procedural requirements relating to service of appeals. Immediately thereafter, the applicant moved the Court, rst through Civil Application No. E171 of 2024 and subsequently through the present application after withdrawing the former. This conduct demonstrates the applicant’s continuing intention to challenge the impugned judgment and decree thereby militating against a nding that the applicant was indolent or had abandoned the appellate process altogether. 21. I have further considered whether the intended appeal is arguable. At this stage, the applicant is not required to establish that the appeal will necessarily succeed. It is sucient to demonstrate that the appeal raises at least one bona de issue worthy of judicial consideration. The draft grounds set out in the application allude to questions regarding the propriety of the trial court's ndings and the treatment of the respondent's counterclaim. Without making denitive ndings on the merits, I am satised that the intended appeal cannot be described as frivolous. 22. As regards prejudice, the respondent contends that litigation must come to an end and that it is entitled to enjoy the fruits of its judgment. That argument is undoubtedly valid. Nevertheless, the prejudice alleged is largely the continuation of litigation. Such prejudice, though relevant, must be balanced against the applicant's constitutional right to access and exhaust the appellate process. No material has been placed before me to demonstrate that the respondent will suer prejudice incapable of compensation by an award of costs. 23. The Court is also enjoined by sections 3A and 3B of the Appellate Jurisdiction Act to facilitate the just, proportionate and expeditious determination of disputes. While procedural rules are important and must ordinarily be complied with, they are ultimately handmaidens of justice and not its mistress. Where a litigant has demonstrated a genuine desire to pursue an appeal and where no irremediable prejudice will be occasioned to the opposing party, the Court should lean towards sustaining rather than terminating an appeal. 24. Having weighed all the relevant considerations, namely the explanation oered for the default, the applicant's demonstrated intention to pursue the appeal, the arguable nature of the intended appeal, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1743/eng@2026-09-21 4

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and the absence of substantial prejudice to the respondent, I am persuaded that this is a proper case for the exercise of this Court's wide and unfettered discretion under Rule 4 of this court’s Rules. 25. Accordingly, the application is allowed. Time is hereby extended for the ling and service of the Notice of Appeal and Record of Appeal, and that the Notice of Appeal dated 18th November, 2024, shall be deemed as duly led and served upon payment of any requisite fees. The Record of Appeal shall be led and served within thirty days from the date of this ruling. Costs of the application will be payable to the respondent. DATED AND DELIVERED AT KISUMU THIS 21ST DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ........................... 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/2026/1743/eng@2026-09-21 5

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