Kibe & 8 others v Barclays Bank of Kenya Limited

4. I note that the applicants led a further adavit sworn on 29th October, 2021 by Charles Kanjama, Advocate for the applicants in support of this request. Counsel deposes that the applicants contracted his rm to le the instant application on 16th November, 2020. He deposes that he assigned a counsel in his rm one Veronica Kanyara, who led the application on 24th December, 2020. He avers that the delay in ling the application was occasioned by a mistake on her part, which he attributes to misapprehension of the law. He explains that his associate did not know that time is provided for ling an application for certication to the Supreme Court in the Court of Appeal Rules, but that rather that she perused and relied on the Supreme Court Rules, in which there is no provision for limitation of time for ling such application. 5. Counsel urges this Court to be guided by the holding in LSG Lufthansa Service Europa/Afrika GmBH & Another vs. Eliab Muturi Mwangi [2019] eKLR and excuse the delay. 6. The respondent has led a replying adavit sworn by Milkah Gachanja, Legal counsel at the respondent’s bank. In the replying adavit, the respondent does not address the issue of delay to le the instant application, however, in the respondent’s written submissions dated 22nd July, 2024 and 5th May 2026, they have addressed the issue of delay, which I will consider. 7. The application was canvassed by way of written submissions. In their adavits in support thereof dated 29th October, 2021 and 4th May, 2026, the applicants contend that the delay in ling the application should be excused as this Court has unfettered discretion under rules 4 and 53 of this Court’s Rules to enlarge time where sucient cause has been shown. In support of this preposition, they rely on Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR where the Supreme Court set out the guiding principles for extension of time, and Thuita Mwangi vs. Kenya Airways Ltd [2003] KECA 201 (KLR), in which the Court armed the principles stated in Leo Sila Mutiso vs. Rose Hellen Wangari, [1999] 2 EA 231 on facts to be considered in applications for extension of time. 8. The applicants further submit that the delay was neither inordinate nor inexcusable, having been occasioned by an inadvertent mistake of the counsel, and urge the Court to exercise its discretion in the interest of justice. They rely on the case of Njoroge vs. Kimani [2022] eKLR where the Court discussed what constitutes an excusable delay and LSG Lufthansa Service Europa/Afrika GmBH & Another vs. Eliab Muturi Mwangi, (supra) where the Court exercised its discretion to excuse delay occasioned by counsel’s mistake. 9. The applicants also submit that although the application ought to have been led within fourteen (14) days of the Court of Appeal’s decision, it was led approximately thirty-four (34) days out of time. They maintain that the delay was neither excessive nor unreasonable. In support, they rely on the case of Sokoro Savings and Credit Co-operative Society Ltd vs. Mwamburi [2023] KECA 381 (KLR) where a delay of forty- three (43) days was held not to be inordinate, and Muringa Company Limited vs. Archdiocese of Nairobi Registered Trustees [2020] KECA 761 (KLR) where eighty-six (86) days was similarly found not to be excessive. 10. Finally, the applicants submit that the respondent will suer no prejudice if the application is allowed since it will have an opportunity to respond to the intended application. They further contend that the interest of justice as embodied in Article 159 of the Constitution require that parties be aorded an opportunity to ventilate their grievances on the merit rather than be shut out on procedural technicalities. In support of this argument the applicants rely on the case of Kiu & Another vs. Khaemba & 3 Others [2021] KECA 318 (KLR) and urge this Court to nd that the application has satised the threshold for extension of time and should be allowed. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1808/eng@2026-09-25 2

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11. The respondent in its written submissions dated 22nd July, 2024 and 5th May, 2026 submits that the underlying principles to be considered in the exercise of the Court’s discretion to extend time was elucidated by the Supreme Court decision of Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others (supra). The respondent submits that the applicants have failed to give a plausible and satisfactory explanation for the delay emphasizing that extension of time is an equitable remedy where an applicant bears the burden of laying a basis for the court’s satisfaction, and that there must a reasonable explanation for the delay. The respondent quotes the case of Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKLR. The respondent submits that a delay occasioned by counsel’s ignorance of the applicable law, does not constitute a reasonable explanation. Further, that the associate is faulted for failing to consider the provisions of rule 40 of the Court of Appeal Rules. However, the said rule is tailored for applications for certicate of tness or leave to appeal in criminal matters not civil proceedings such as this one. Further, the further adavit was led approximately one (1) year after the delivery of the judgment. The respondent further contends that the application is prejudicial because the Supreme Court in Wamae & 97 Others vs. Barclays Bank of Kenya Limited [2021] KESC 5 (KLR) conclusively determined that the dispute did not raise constitutional issues warranting further appeal. Finally relying on the case of Paul Musili Wambua vs. Attorney General & 2 Others [2015] KECA 471 (KLR), the respondent submits that in exercising its discretion the Court should consider the length and reason for the delay, the chances of the intended appeal succeeding, and the prejudice likely to be suered by the respondent, and urges the Court to dismiss the application with costs. 12. I have carefully considered the application, adavits in support of the application, replying adavit, written submissions and the authorities cited by the parties. The power of this Court to extend time is discretional and unfettered. It is provided for under rule 4 of the Rules. Although wide and unfettered, the discretion must be exercised judicially, not on whim, sympathy or caprice as was well held by this Court in the case of Julius Kamau Kithaka vs. Waruguru Kithaka Nyaga & 2 Others [2013] KECA 236 (KLR). 13. Rule 4 provides that: “ The Court may, on such terms as may be just, by order, extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.” 14. Rule 4 does not prescribe the factors to the considered in an application for extension of time. However, these principles are well set out in numerous decisions of this Court. The case of Leo Sila Mutiso vs. Rose Hellen Wangari, (supra) which is the locus classicus case, laid down the parameters as follows: “ 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; rst, 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.” 15. Further, the parameters were amplied in the Supreme Court decision in Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others (supra) as follows: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1808/eng@2026-09-25 3

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a. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court; b. A party who sought extension of time had the burden of laying a basis for it to the satisfaction of the court; c. Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case to case basis; d. Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the court; e. Whether there would be any prejudice suered by the respondents if the extension was granted; f. Whether the application had been brought without undue delay; and; g. Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time. 16. Before addressing the substantive issue, I must rst determine the respondent’s objection regarding the provisions of law invoked by the applicants in bringing the present application. The respondent contends that the application was brought under the wrong provision, particularly rule 40, which governs criminal matters. While that contention is correct, I note that the applicants have properly invoked Article 163(4) (b) of the Constitution together with rules 41 and 42 of this Court’s Rules which respectively govern civil matters and applications for certication where a matter raises a point of law of general public importance. Guided by Article 159 (2)(d) of the Constitution which enjoins courts to administer justice without undue regard to procedural technicalities, I nd that the erroneous invocation of rule 40 does not go to the root of the application and is therefore curable. 17. On to the substantive issue. An application for certication to determine that a matter of general public importance is involved is to be made within thirty (30) days after the delivery of the decision. 18. Rule 41 provides that; “ (2) An application seeking certication that a matter of general public importance is involved shall be made within thirty days after the delivery of the decision. (3) Despite subrule (2), an application brought out of time shall be marked as “lodged out of time” under rule 12 with liberty to apply for extension of time.” 19. There is no dispute that the present application was led out of time. The impugned judgment was delivered on 6th November, 2020, while the present application was led on 24th December, 2020. The prescribed period for ling the application, within thirty (30) days) after the decision, expired on 6th December, 2020 and thus resulting in a delay of eighteen (18) days. 20. I further note that although the applicants seek extension of time, the supporting adavit sworn by Joyce Muchiri does not address the reason for the delay. Instead, the explanation is provided in the further adavit of Charles Kanjama sworn on 29th October, 2021, approximately ten (10) months after the application had been led. 21. Counsel deposes that he received instructions to le the application on 16th November, 2020 and attributes the delay to a mistake by his associate, who misapprehended the applicable law. According to counsel, the associate erroneously relied on the Supreme Court Rules which do not prescribe a time https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1808/eng@2026-09-25 4

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limit for ling such an application, instead of the Court of Appeal Rules, which do. In my view, this amounted to ignorance of the applicable law on the part of the counsel’s associate. 22. In the case of Belinda Murai & 9 Others vs. Amos Wainaina [1979] KECA 25 (KLR) this Court quoted the case of White vs. Arther Nicol Limited (1966) NZLR 645 at p. 647 where Tompkins J. said the follows with regards to ignorance of the law. “ I think ignorance of the law can constitute a mistake of law.” 23. In the same judgment, this Court continued and held as follows; “ The former advocate’s belief was a mistake on a point of law however wrong he might have been in his belief. No one has said that it was a deliberate act. On the contrary, his obstinate adherence to his wrong belief shows that he genuinely, though mistakenly, believed his view was correct. A mistake is a mistake. It is no less a mistake because it is unfortunate slip. It is no less pardonable because it is committed by senior counsel though in the case of a junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that courts of justice themselves make mistakes which is politely referred to as erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometimes overrule. It is also not unknown for a nal court of appeal to reverse itself when wisdom accumulated over the course of the years since the decision was delivered so requires. It is all done in the interest of justice. A static system of justice cannot be ecient. Benjamin Disraeli said change is inevitable. In a progressive country change is constant. Justice is a living, moving force. The role of the judiciary is to keep the law marching in time with the trumpets of progress.” 24. I am guided by the foregoing decisions. I do nd that a blunder was committed by counsel for the applicants, including his associates for which they have taken responsibility. The reasons given for the delay of eighteen (18) days in ling the application is excusable. The delay involved was itself not inordinate. Furthermore, it is my view that the respondent will not be prejudiced if the application is allowed, as no hardship will be caused to it. 25. I noted that the applicants’ adavit explaining the delay in bringing the application was led approximately ten (10) months after the application itself. No explanation has been oered as to why the applicants took that long to le the further adavit in support of their prayer for extension of time. I treat this as another blunder in the same case. As this Court held in Belinda Murai, (supra): “ A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate…” 26. Having considered all the circumstances of this application, I am inclined to allow the application. In the result, the notice of motion application dated 24th December, 2020 is merited and is hereby allowed with no order as to costs. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026 https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1808/eng@2026-09-25 5

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J. LESIIT …………………………… 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/2026/1808/eng@2026-09-25 6

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