Dhabiti Sacco Ltd v Kenya Union of Commercial Food and Allied Workers

the alleged order issued on 2nd July, 2025. On the other hand, the respondent, while intimating to the Deputy Registrar that the decree was inaccurate, proceeded to serve it and to seek warrants of attachment to issue vide a letter dated 11th November 2025. It was further deposed that the applicant then instructed its then advocates to have the purported judgment set aside and a Notice of Motion dated 13th November 2025 was led but was dismissed. 3. The deponent averred that the said judgment on admission purported to retrospectively apply a Collective Bargaining Agreement in the absence of a clause allowing such application. In her view, the application of the said clause could potentially bankrupt the applicant in the event that all retirees make similar claims hence the necessity of the extension of time sought to avoid the looming existential crisis posed by the judgment. 4. The deponent disclosed that the delay in ling the appeal was occasioned by a futile attempt initially taken to have the matter solved before the trial court. In her view, the delay is not inordinate and is excusable. It was her position that the applicant has a weighty appeal with signicant issues to be determined and that the respondent stands to suer no prejudice as they are also beneciaries of the applicant's pension scheme, over and beyond being beneciaries of the CBA, and will therefore not suer from illiquidity. 5. In opposition, the respondent’s General Secretary, Andrew Kinyua M’Mukiri, swore a replying adavit dated 22nd June 2026. According to him, whereas the respondent led written submissions, on 2nd July 2025, Mr. Asule for the applicant informed the court that they did not le their submission due to the reason that they had admitted the claim as prayed, their only concern being the mode of payment. Following that admission, the trial court issued its nal order and upon reading the same, the applicant's counsel sought stay of execution of the judgment for thirty days which was granted by the court. On the same day, the respondent requested and paid for a copy of the nal orders of the court and the court, on 21st July 2025, issued the respondent with the decree arising from the said order. 6. The deponent further disclosed that on 29th July 2025 the applicant's counsel, Ms. Kwamboka, proposed to the respondent an intention to pay the decretal sum in four years, a proposal which the respondent declined since a similar had been made by the applicant during conciliation and had not been unaccepted. By the time of the second proposal, it was averred, no Notice of Appeal had been lodged by the applicant and although the applicant was required to le a Notice of Appeal on or before 15th July 2025 none was led and it was not until 31st October 2025, four months after the judgement, upon being served with the decree that the applicant requested for the typed proceedings. In addition, although the applicant requested for copies of the proceedings, the letter of request was not served on the respondent. Notwithstanding the fact that the applicant had admitted the claim, it, on 13th November 2025, led an application for stay of the execution. It was disclosed that there was no Certicate of Delay issued by the trial court. 7. In the deponent’s contention, no reason was advanced explaining why the applicant waited for almost one year to le the intended appeal and even as at the time of the ling the present application, no Notice of Appeal had been led which could be the basis for the prayer that the same be admitted out of time. In his view, the reason why the applicant did not le its submissions was because it had admitted the claim intimating that its only concern was the mode of payment which, despite being directed by the trial court to make a formal application to the eect, the applicant failed to do. Instead, the applicant, after the entry of the judgment, proposed to pay the decretal sum in four years. The respondent urged the Court to dismiss the application with costs. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1795/eng@2026-09-25 2

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8. When the application was called out for virtual hearing on 29th July 2026, learned counsel, Mr Mwenda, appeared for the applicant while Mr Nyumba and Ms Hellen Macharia, both ocers of the respondent represented the respondent. Both parties relied on their written submissions which they briey highlighted. 9. On behalf of the applicant, it was submitted, based on the case of Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 701 (KLR) as quoted in Njeri & another v Wairimu & 2 others [2026] KECA 877 (KLR), that the length of the delay is not inordinate since the judgment was entered on 2nd July 2025 while the instant application is dated 9th June 2026 and was led on 15th June 2026, a period which is just under one year and two weeks. Based on the cited decision, it was submitted that a plausible and satisfactory explanation for delay is the key that unlocks the court's ow of discretionary favour. Citing the case of Meitamei v Letoluo & 2 others [2026] KECA 1182 (KLR), it was submitted that in determining whether or not the delay is inordinate, it is not a matter of arithmetic but all the surrounding circumstances, including the reason for the delay, must be considered by the Court. The applicant further relied on the case of Leah Wambui Kuria & 2 others v Jame Muchumu & another; Charles Thuo Muchunu & 4 others (Interested Parties) [2018] KECA 44 (KLR) where there was a delay of 500 days. According to the applicant, the intended appeal has good chances of success in light of the contested admission of the claim which was not in writing as well as the payment of statutory deductions. It was noted that there was, in fact, a counterclaim and the case of Lucy Momanyi T/A L.N. Momanyi & Company v Nurein M.A. Hatimy & another [2003] KECA 184 (KLR), was cited to highlight the fact that where not all issues are expressly admitted, judgement on admission ought not to be entered. 10. The applicant asserted that since the instant decree is money- related, and the impugned judgment imposes interest until payment in full, the respondents will not suer prejudice, which in any cause was not pointed out by the respondent, if the matter is allowed to proceed until its logical conclusion. Reliance was placed on the decision of Ngei v Kibe & another [2021] KECA 243 (KLR) and Multichoice Kenya Ltd v Francis Omondi [2018] KEHC 532 (KLR) in urging the Court that this Court has consistently allowed applications for extension of time to appeal from money decrees. 11. At the plenary hearing Mr. Mwenda submitted that the delay was satisfactorily explained on the basis that the applicant’s counsel opted to pursue the application for setting aside hence the applicant ought not to be punished for the mistakes of counsel. As regards the length of the delay, it was submitted that the application seeking to set aside the judgement was dismissed on 5th June 2026 while the instant application was led on 15th June 2026 hence there was no delay. 12. On behalf of the respondent, it was submitted that the applicant had a 30 days stay and within that period it ought to have led a Notice of Appeal if it had any issue with the admitted judgment. According to the respondent, there is no sucient reason by the applicant did not le the Notice of Appeal in time and why it waited for almost one year to seek for extension of time to appeal against a judgment it had already admitted. The respondent reiterated that there is no Notice of Appeal which the court is being asked to allow out of time as the draft of Memorandum of Appeal cannot suce without a notice of appeal. In addition, the applicant never served the respondent with the letter bespeaking the proceedings as required by the Rules of this court and the case of Marwa v Chacha Civil Application (2020) KECA 151 (KLR) was cited to highlight that in the circumstances allowing the application would be in vain. Based on the decision of the Supreme Court in the case of Alex Kithangari & 4 others v Benson Gichohi Mutahi Application E024 of 2024, the respondent urged the Court to dismiss the application for being misplaced, bad in law and without merit. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1795/eng@2026-09-25 3

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13. Mr. Nyumba in his oral highlight stated that the applicant had abandoned its counterclaim at the hearing and admitted the entire amount. 14. I have considered the submissions made on behalf of the parties herein. This Court in Leo Sila Mutiso v Helen Wangari Mwangi Civil Application No. Nai. 255 of 1997 [1999] 2 EA 231 restated the circumstances under which the Court exercises its jurisdiction in extending time and identied the conditions for doing so as: rst, the period of the delay; secondly, the reasons for such a delay; thirdly (possibly), whether the proceedings for which time is sought to be extended is frivolous; and fourthly, whether the respondent in those proceedings will be unduly prejudiced if the application were to be granted. 15. Those principles were restated by Waki, JA in Fakir Mohamed v Joseph Mugambi & 2 others [2005] eKLR as follows: “ The exercise of this Court’s discretion under Rule 4… is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the eect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance-are all relevant but not exhaustive factors: See Mutiso vs. Mwangi Civil Appl. NAI. 255 of 1997 (UR), Mwangi vs. Kenya Airways Ltd [2003] KLR 486, Major Joseph Mwereri Igweta vs. Murika M’Ethare & Attorney General Civil Appl. NAI. 8/2000 (UR) and Murai v Wainaina (No 4) [1982] KLR 38.” 16. The Supreme Court of Kenya in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others, Supreme Court Application No. 16 of 2014 [2014] eKLR, weighed in by opining that extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court; that the party seeking extension of time has the burden to lay a basis to the satisfaction of the court; that extension of time is a consideration on a case to case basis; that delay should be explained to the satisfaction of the court; whether there will be prejudice suered by the respondent if the extension is granted; whether the application is brought without undue delay; and whether public interest should be a consideration. 17. Those are the main principles to be considered but the list is not exhaustive and can never be exhaustive as the exercise of discretion by itself demands that the Court should not be restricted in its operations. The Court would of course also consider the overriding objective spelt out in sections 3A and 3B of the Appellate Jurisdiction Act. 18. At the plenary hearing, Mr. Mwenda claried that the applicant intended to appeal against the main judgement and not against the ruling declining to set aside the judgement. Therefore, the period that the applicant ought to explain is the period between the date of the judgement and the date of the application seeking extension of time as opposed to the delay between the ruling declining to set aside the judgement and the date of the application for extension of time as contended by Mr. Mwenda. The judgement which the applicant intends to appeal against was entered on 2nd July 2025. The applicant ought to have led the Notice of Appeal by 16th July 2025. The application seeking extension of time is dated 9th June 2026, a delay of almost one year. One year’s delay is ordinarily inordinate. The delay in ling the Notice of Appeal is explained on the basis a futile attempt initially taken to have the matter solved before the trial court. That attempt, it seems, was the application by the applicant to set aside the judgement. That application, according to https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1795/eng@2026-09-25 4

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the respondent was only led on 13th November 2025 after attempts to settle the decree by installments failed. There is no explanation given by the applicant regarding steps if any taken by it between 2nd July 2025 and 13th November 2025, a delay of over three months. As rightly pointed out by the respondent, the recourse available for the applicant if it was serious about settling the decree by instalment would have been to move the trial court by way of formal application. Having not done that, it would appear that the instant application is an afterthought hence the delay is not satisfactorily explained. 19. The decision whether or not to extend time is an exercise of judicial discretion. This being an exercise of judicial discretion, like any other judicial discretion must on xed principles and not on private opinions, sentiments and sympathy or benevolence but deservedly and not arbitrarily, whimsically or capriciously, but must be exercised on the basis of evidence and sound legal principles, with the burden of disclosing the material falling squarely on the supplicant for such orders. See Gharib Mohamed Gharib v Zuleikha Mohamed Naaman Civil Application No. Nai. 4 of 1999. 20. In my view a party who seeks the exercise of the court’s discretion as afterthought having in eect indicated its satisfaction with the judgement is not entitled to favourable exercise of that discretion. 21. In the premises, this application fails and is dismissed with costs to the respondent. 22. It is so ordered. DATED AND DELIVERED AT MERU THIS 25TH DAY OF SEPTEMBER, 2026. G. V. ODUNGA JUDGE OF APPEAL I certify that this is the true copy of the original DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1795/eng@2026-09-25 5

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