Chap Chap Solution Co Ltd v Lilian Nguma Kalungo

constraints, it was unable to raise the assessed court fees within the prescribed period, thereby occasioning a delay in the institution of the intended appeal. According to the applicant, the delay was neither deliberate nor inordinate but arose from circumstances beyond its control. It is further deposed that the applicant has since taken steps to regularize the position and remains keen on ventilating its grievance before the appellate court. 4. The applicant contends that the intended appeal is arguable and raises substantial issues of law and fact deserving consideration by the Court. Thus, unless the orders sought are granted, the applicant will be denied an opportunity to exercise its right of appeal and will suer substantial prejudice. The applicant also states that there exists a real likelihood of execution of the impugned decree, and unless an order of stay is granted, the intended appeal, if ultimately is led and is successful, it may be rendered nugatory. The applicant therefore urges the Court to exercise its discretion in its favour and grant the orders sought in the interest of justice. 5. The application is opposed by the respondent through a replying adavit sworn by Joseph Musomba, learned counsel for the respondent in which he deposes that the impugned judgment and decree sought to be challenged on appeal was delivered on 9th December, 2024, and that the applicant had not approached the Court with candour regarding the history of the dispute. According to the respondent, prior to the ling of the present application, the applicant had lodged a similar application, namely Kisumu HCCCMISC/E219/2025, on 28th October, 2025, seeking substantially the same reliefs. That in the said application, the applicant attributed the delay in instituting the appeal to the alleged failure by its former advocate to notify it of the judgment and decree to enable it lodge the appeal within the prescribed timelines. It is contended that the said application was subsequently dismissed with costs and that the Court found the prayer for extension of time to be unwarranted, particularly because a Notice of Appeal had already been lodged within time. 6. It is further contended that the present application is therefore superuous, misconceived and an abuse of the court process as the applicant had deliberately failed to disclose the existence and dismissal of the previous application and is now advancing a completely dierent explanation for the delay. According to the respondent, whereas the applicant previously blamed its former advocate for the failure to progress the appeal, it now alleges that the delay arose from his inability to raise the requisite ling fees. The respondent maintains that the new explanation is merely an afterthought and is fundamentally inconsistent with the position previously taken before the High Court. 7. The respondent further deposes that the reasons advanced by the applicant do not satisfactorily explain the prolonged delay and do not warrant the exercise of this Court's discretionary jurisdiction in its favour. It is contended that the intended appeal lacks merit, that the applicant is merely seeking to buy time and frustrate the execution process, and that the present dispute has remained in litigation for over eight years, thereby necessitating nality in the interests of justice. 8. The respondent additionally deposes that the prayer for stay of execution is equally undeserving and that the applicant has failed to establish any basis for the grant of such relief. It is asserted that the applicant has not approached the Court with clean hands and that equitable relief ought not to be extended to a party who presents inconsistent and untruthful explanations regarding the delay complained of. The respondent therefore urges the Court to decline the invitation to exercise its discretion in favour of the applicant. 9. Further, the respondent raises the issue that the application is allegedly not signed by an advocate as required by law and reserves the right to raise a preliminary objection or any other point of law at the hearing of the application. Consequently, the respondent prays that the Notice of Motion be dismissed with costs https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1799/eng@2026-09-25 2

page 2 of 5

10. The applicant in a further adavit contends that the respondent had misconstrued the eect of the decision in Kisumu HCC Miscellaneous Application No. E219 of 2025, maintaining that the same was determined on procedural and jurisdictional grounds rather than on the merits of the intended appeal. The applicant goes on to state that the delay in progressing the appeal was largely occasioned by the omissions and missteps of its former advocates, including the failure to extract the certicate of delay and properly advise the applicant on the status of the matter. It is further stated that the applicant acted diligently and only became aware of the procedural deciencies upon commencement of execution proceedings. The applicant therefore urges the Court not to visit the mistakes of counsel upon an innocent litigant and asserts that the respondent has not substantially controverted the explanations tendered regarding the delay. Consequently, the applicant beseeches the Court to exercise its discretion in its favour and determine the application on the basis of substantive justice rather than procedural technicalities. 11. The Deputy Registrar of this Court issued directions, that the parties were to le written submissions in support of their respective positions. The submissions that were available at the time of crafting this ruling were those of the applicant only. 12. The applicant submitted that this Court possesses wide discretionary powers to permit amendments aimed at facilitating the just determination of disputes and curing procedural defects. From here the applicant veers o the tangent and addresses the issues of amendments of pleadings. To that extent, they irrelevant and l shall therefore ignore them. 13. On whether the previous proceedings constituted a bar to the present application, the applicant submitted that the dismissal of Kisumu HCC Miscellaneous Application No. E219 of 2025 was founded on procedural and jurisdictional considerations and did not amount to a determination the application on the merits. Consequently, the applicant contended that the doctrine of nality was inapplicable and that the present application remained properly before the Court. 14. The applicant also submitted that any procedural lapses that occurred in the conduct of the matter were attributable to former counsel and ought not to be visited upon him. In that regard, reliance was placed on Belinda Murai & 9 Others v Amos Wainaina [1979] eKLR, where the Court emphasized that mistakes of counsel should not ordinarily deprive a litigant of the opportunity to have his dispute determined on its merits and that the interests of justice may warrant the extension of time where a satisfactory explanation is tendered. Finally, the applicant invoked Article 159(2)(d) of the Constitution and urged the Court to prioritize substantive justice over procedural technicalities. 15. I have carefully considered the application, the adavits led by the parties, their respective written submissions and the law. 16. The application principally seeks extension of time to lodge and serve record of appeal out of time and consequential orders of stay of execution pending the hearing and determination of the intended appeal. The second prayer is not in the jurisdiction of this Court as currently constituted of a single judge thence I will not delve into it. 17. The law governing extension of time is settled. Under Rule 4 of the Court of Appeal Rules, this Court is vested with an unfettered discretion to extend time for the doing of any act authorized or required by the Rules. However, like all judicial discretions, the power must be exercised judiciously and upon sound legal principles. 18. The principles applicable in an application for extension of time were succinctly stated in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, where the Court held that in exercising its discretion, the Court ought to consider, inter alia, the length of the delay, the reason for the delay, the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1799/eng@2026-09-25 3

page 3 of 5

chances of the intended appeal succeeding if the application is granted, and the degree of prejudice likely to be suered by the respondent. The same principles were rearmed by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, where the Court emphasized that extension of time is not a right but an equitable remedy available only to a deserving party who satisfactorily explains the delay. The Supreme Court in County Executive of Kisumu v County Government of Kisumu & 8 Others [2017] eKLR again reiterated that extension of time is a discretionary remedy to be granted on a case-by- case basis and that the burden rests upon an applicant to satisfactorily explain the delay and demonstrate that the interests of justice favour the enlargement sought. 19. Applying the foregoing principles to the present application, there is no dispute that there has been considerable delay in instituting the intended appeal. The impugned judgment was delivered on 27th January 2025, whereas the present application was not led until 31st March, 2026, over a year or so down the line. Such delay is undeniably lengthy and therefore imposes upon the applicant the burden of oering a satisfactory, plausible, and credible explanation accounting for the entire period of inactivity before the Court can properly exercise its discretion in his favour. In determining whether such explanation is sucient, the Court must examine not only the length of the delay but also the reasons advanced, the conduct of the parties, the prejudice likely to be occasioned to the respondent, and the overall interests of justice. 20. The applicant attributes the delay in instituting the intended appeal to a combination of factors. Initially, it averred that it was unable to raise the assessed ling fees of Kshs.106,800 within the prescribed period. However, in its further adavit, the applicant principally lays blame on its former advocates, contending that the delay arose from their failure to properly advise it on the status of the appeal, extract the certicate of delay, and take the necessary procedural steps required for the timely institution of the appeal. The applicant therefore maintains that the delay was neither deliberate nor attributable to its own indolence and urges the Court not to visit the mistakes of counsel upon an innocent litigant. 21. The respondent has argued that the explanations presently advanced are inconsistent with those previously tendered before the Court below and that the applicant has therefore failed to approach the Court with candour. I certainly acknowledge the force of that argument. I am thus persuaded that the material placed before me does not demonstrate any sustained intention on the part of the applicant to challenge the impugned decision through the appellate process. This Court in considering such an application invokes equitable jurisdiction. Indeed, it is said that whomsoever comes to equity must with clean hands. 22. The applicant has in my view, shown extreme lack of candour. It deliberately to disclose that it led a similar application in the court below which was upon hearing, dismissed. Similarly, it has given contrasting reasons for the delay, rst Initially, was its inability to raise the assessed ling fees of Kshs. 106,800 within the prescribed period and secondly, it now lays blame on its former advocates, contending that the delay arose from their failure to properly advise it on the status of the appeal, extract the certicate of delay, and take the necessary procedural steps required for the timely institution of the appeal. 23. As to its inability to raise the ling fees nothing stopped the applicant from invoking Rule 120 of the Court of Appeal Rules which allows an indigent person (pauper) to institute an appeal without paying standard court fees or depositing security for costs. The delay can therefore be said to have arisen from complete indierence to the litigation. Regarding the failures of his previous advocates to act, it should have served its course, if those advocates had sworn an adavit to back-up the applicant’s assertions. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1799/eng@2026-09-25 4

page 4 of 5

Finally, because of indigence, it may perhaps serve it well if these proceedings were brought to denite halt. 24. I am also mindful of the long-established principle that, where circumstances permit, the mistakes of counsel ought not invariably be visited upon a litigant. In Belinda Murai & 9 Others v Amos Wainaina (supra), the Court observed that a mistake is a mistake and that the doors of justice should not be closed merely because a party's advocate has erred. That principle has been consistently applied where the interests of justice require that a litigant be aorded an opportunity to be heard on the merits. However, this only applicable where the applicant is candid with the court and as I have already demonstrated, the applicant on this scores zero. 25. The respondent further relied upon the dismissal of Kisumu HCC Miscellaneous Application No. E219 of 2025 as evidence that the present application is misconceived. Contrary to the assertions of the applicant, I am satised that the previous proceedings resulted in a substantive determination of the applicant's intended appeal. 26. The Court is further obligated by Article 50 of the Constitution to facilitate access to justice and by Article 159(2)(d) to administer justice without undue regard to procedural technicalities. These constitutional imperatives do not excuse non-compliance with procedural requirements, but they require the Court, where circumstances justify, to lean in favour of a determination on the merits rather than shutting a litigant out from the seat of justice. I do not think that those Articles will apply to the circumstances of application in view of what I have stated about the applicant’s lack of candour. 27. On the question of prejudice, the respondent undoubtedly has a legitimate expectation to enjoy the fruits of a judgment lawfully obtained, I am however satised considering the length of time that dispute has remained in the corridors of justice, that prejudice likely to be occasioned by the grant of the orders sought cannot be adequately be compensated by costs. 28. Having weighed all the relevant considerations, including the explanation oered for the delay, the interests of justice, the constitutional imperative of determining disputes on their merits, and the presence of demonstrable prejudice incapable of compensation by costs, I am persuaded that this is an appropriate case for the court to decline to exercise its unfettered discretion in favour of the applicant. 29. Accordingly, this application is devoid of merit and is accordingly dismissed with costs to the respondent. DATED AND DELIVERED AT KISUMU THIS 22ND 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/2026/1799/eng@2026-09-25 5

page 5 of 5