Webtribe Limited t/a Jamnopay v Jambopay Express Limited

appeal in accordance with rule 77 of this Court’s Rules. The applicant further avers that the notice of appeal was filed together with the record of appeal, Page 2 of 10

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and the record served upon the respondent on 8 th July, 2025. The applicant also avers that its appeal has a high chance of success; that the application has been brought without undue delay; and, that the applicant will be severely prejudiced if the application is not allowed. 3. The respondent opposes the application through its replying affidavit sworn by Arif Manji, its Director, on 8 th June, 2026. The respondent avers that the application seeks to challenge the High Court decision delivered on 5 th June, 2025 dismissing the applicant’s claim of assessment of damages. While admitting that the applicant filed a notice of appeal and a record of appeal, the respondent contends that the notice of appeal was neither filed in the High Court as required under rule 77 nor served upon it together with the record of appeal. It further avers that it only became aware of the proceedings on 23rd February, 2026 upon receipt of an email from the Deputy Registrar, prompting it to instruct its advocates to file an application to strike out the notice of appeal, memorandum of appeal and record of appeal. The respondent avers that it is the said application that prompted the applicant to file the present application with an aim of regularizing its documents, and thus the application is an afterthought. 4. The respondent further avers that the application has been brought with undue delay. It states that the notice of appeal is dated 9th June, 2025, seven (7) day period for service Page 3 of 10

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under Page 4 of 10

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rule 79 expired on or about 16th June, 2025, yet the present application was not filed until 2 nd April, 2026, approximately nine and a half (9½) months later. According to the respondent, in seeking extension of time, no explanation has been offered for the delay. The respondent also contends that the applicant’s description of the failure to serve as “advertent omission” amounts to an admission that the default was deliberate. It further avers that it stands to suffer prejudice if the application is allowed, as the sum of Kshs.2,000,000/- deposited in court on 14th August, 2017 has remained unavailable for nearly nine (9) years despite the dispute having been concluded, and an application for its release filed on 8th June, 2025 continues to be impeded by the purported appeal. 5. The respondent also avers that the application is unsupported by a competent affidavit. It contends that although the notice of motion expressly states that it is supported by the annexed affidavit of Seth Ojienda, no such affidavit was filed or served. Instead, the only supporting affidavit is that of Ven Rasugu, which according to the respondent, is not the affidavit upon which the application purports to rely. The respondent therefore maintains that the application lacks a proper evidential foundation. 6. The respondent further avers that the application seeks incomplete and contradictory relief, as it only seeks extension of time to serve the notice of appeal while Page 5 of 10

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remaining silent on Page 6 of 10

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the memorandum of appeal and the record of appeal, both of which also remain unserved. The respondent therefore prays that the present application be dismissed with costs. 7. The application submissions. was canvassed by way of written 8. The applicant in its written submissions dated 2 nd and 13th April, 2026 submits that the court should exercise its discretion to extend time for service of the notice of appeal arguing that although the notice of appeal was served within time under rule 77 of this Court’s Rules, the delayed service was due to an inadvertent mistake by its counsel. Citing Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commissions & 7 Others 2014] eKLR and Wasike vs. Swala [1984] KLR P. 591, for the principles governing extension of time, the applicant contends that extension of time is a discretionary remedy dependent on the circumstances of each case. Relying on Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] KECA 701 (KLR), the applicant argues that the delay was not inordinate and was satisfactorily explained. The applicant further relies on the case of Geodfrey Kinuu Maingi & 4 Others vs. Nthimbiri Farmers’ Co-operative Society Ltd & Another [2008] KECA 293 (KLR) to demonstrate that the court may extend time for service of a notice of appeal where sufficient cause is shown. The applicant maintains that the respondent will suffer no Page 7 of 10

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prejudice if the application is allowed and urges Page 8 of 10

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the court to allow its application and grant the orders as prayed. 9. The respondent in its written submissions dated 8 th June, 2026 submits that the present application is incompetent and undeserving of the court’s discretion because it lacks a proper evidential basis and the applicant has failed to satisfy the principles governing extension of time. Relying on Salat Case (supra), the respondent argues that extension of time is an equitable and discretionary remedy available only where the delay is satisfactorily explained, which the applicant has failed to do. 10. Citing National Land Commission vs. Tom Ojienda & Associates [2023] KECA 1183 (KLR), the respondent contends that the unexplained nine and a half (9 1/2) month delay is inordinate and fatal to the application. The respondent further submits that the intended appeal is devoid of merit, the applicant has not approached the court with clean hands, and the respondent continues to suffer prejudice due to the prolonged litigation. The respondent thus urges the court to dismiss the application with costs. 11. The principles that apply in an application for leave to extend time under rule 4 of the Court of Appeal Rules were well set out in the frequently cited case of Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi [1999] 2 EA 231 and states as follows: Page 9 of 10

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“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 decree of prejudice to the respondent if the application is granted.” 12. Before delving into the substantive issue for determination, I must first address the respondent’s objection that the supporting affidavit is incompetent because it is sworn by Ven Rasugu instead of Seth Ojienda as stated on the face of the application. 13. Upon perusal of the supporting affidavit, I note that although it is not sworn by the person named on the face of the application, it is duly sworn by Ven Rusungu and properly commissioned. Further, its contents expressly support the application and addresses the matters raised in the notice of motion. In the absence of any challenge to the deponent’s capacity to swear the affidavit or to its form and substance, I am not persuaded that the mere discrepancy between the name of the intended deponent stated in the notice of motion and the person who actually swore the affidavit renders the affidavit incompetent or defective. I therefore find that the application is supported by a competent supporting affidavit and thus the respondent’s objection is Page 10 of 10

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without merit. Page 11 of 10

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14. On the substantive issue, it is not in contention that the notice of appeal was filed within time as prescribed by rule 77 of this Court’s Rules. The impugned decision was delivered on 5th June, 2025 and the notice of appeal filed on 9th June, 2025 thus, lodged within the fourteen (14) day timeline from the date of delivery of the impugned decision. What is in contention is the service of the notice of appeal which the applicant admits that it failed to serve upon the respondent as required by rule 79 of this Court Rules. 15. Rule 79 provides as follows: “ An intended appellant shall, before or within seven days after lodging notice of appeal under rule 77, serve copies of the notice on all persons directly affected by the appeal: Provided that the Court may, on application which may be made ex parte, within seven days after the lodging of the notice of appeal, direct that service need not be effected on any person who did not take part in the proceedings in the superior court.” 16. The applicant attributes the delay in serving the notice of appeal upon the respondent to the inadvertent omission and oversight on the part of its advocate. In the application, the applicant stated that the omission was “advertent” but corrects in the submissions to “inadvertent”. This I note was a mistake that was later corrected. The applicant avers that the notice of appeal was however served together with the record of appeal upon the respondent on 8 th July, 2025. On the other hand, the respondent has denied any service of Page 12 of 10

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the said Page 13 of 10

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documents upon them. The respondent maintained that it was not aware of the intended appeal until 23 rd February, 2026 upon receipt of the Deputy Registrar’s email. I note that there is no evidence by the applicant to show that indeed service was effected upon the respondent on 8 th July, 2025. The applicant needed to adduce evidence to establish that it effected service of the record of appeal. Since the same was contested, and the applicant filed no affidavit to respond, then what the respondent contended stands. 17. The position then is that the present application was filed on 2nd April, 2026 almost nine and a half (9 1/2) months from the date of lodging the notice of appeal. The applicant needed to explain the delay in serving the notice of appeal upon the respondent, and the delay in bringing this application. Other than stating that the delay in filing the present application is not inordinate, no explanation was offered for the delay in serving the notice of appeal. 18. In Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet (supra), this Court held as follows; “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 flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercised.” Page 14 of 10

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19. Further, it is clear to my mind that for an application of this nature, the entire period of delay must be stated and explained to the satisfaction of this Court. See also County Executive of Kisumu vs. County Government of Kisumu & 8 Others [2017] KESC 16 (KLR). 20. Having failed to give any explanation for the delay involved in this application, I find that the applicant has not demonstrated to this Court that it is worthy of the order of extension of time to serve the notice of appeal out of time. In the circumstances, I will not proceed to consider the other factors such as absence of any prejudice, and possible success of the appeal. I place reliance on the case of Abdul Aziz Ngoma vs. Mungai Mathayo & Another [1976] KECA 16 (KLR) where this Court held as follows; “We would like to state once again that this Court’s discretion to extend time under rule 4 only comes into existence after “sufficient reason” for extending time has been established and it is only then that other considerations such as absence of any prejudice and the prospects or otherwise of success in the appeal can be considered.” 21. I make the following orders: 1. The notice of motion dated 2nd April, 2026 is without merit and is hereby dismissed with costs. Page 15 of 10

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2. The memorandum of appeal and the record of appeal filed on 12th June, 2025 are not properly on record and are hereby struck out. Dated and delivered at Nairobi this 25 th day of September, 2026 J. LESIIT ……………….…………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 16 of 10

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