Outsource Designs Limited v Wema Magharibi Limited, National Construction Authority & Land Registrar, Kisumu

the applicant, sworn on the same date. Page 2 of 7

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[2] In so far as it falls for determination by a single Judge, the applicant principally seeks for extension of time to file and serve a Notice of Appeal against the ruling and Order of the High Court of Kenya at Kisumu (Omido, J.) delivered on 26 th August, 2026, in HCCOMM MISC/E009/2026, together with an order deeming the Notice of Appeal already lodged as duly filed and served. The other prayers sought in the application being interim injunction, inhibition and of Kshs.17,925,000/= in a joint interest account are unsuited for this forum. I will therefore not entertain them. [3] The applicant's case appears to be that it is dissatisfied with the said ruling and order which dismissed its application for interim measures of protection under section 7 of the Arbitration Act, discharged the interim orders previously granted and awarded costs against it. According to the applicant although it intended to appeal, the prescribed period for lodging a Notice of Appeal lapsed before the same could be filed. The applicant attributes the delay to the time required by its advocates to consider, analyse, undertake legal research and advise the Applicant on the prospects of an appeal. It is further stated that the parties engaged in negotiations with a view to reaching an out of court settlement of the dispute, which negotiations ultimately aborted. The applicant maintains that the resulting delay, of less than Page 3 of 7

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one month from the date of the ruling and order, was therefore neither inordinate nor deliberate and has been satisfactorily explained. [4] The applicant further contends that the intended appeal is arguable and raises important questions regarding the interpretation and application of section 7 of the Arbitration Act, the scope of interim measures of protection, and whether the learned Judge erred in holding that the remedies sought were matters to be pursued before the arbitral tribunal. [5] On that basis, the applicant urges the Court to exercise its discretion under Rule 4 of the Court of Appeal Rules, extend time for lodging and serving the Notice of Appeal against the ruling and order delivered on 26th August, 2026, and deem the Notice of Appeal lodged on 22nd September, 2026 as properly on record. [6] The application is opposed through the Replying Affidavit of George Mudachi, a director of the 1st Respondent, sworn on 29th September, 2026. In essence, the 1 st respondent contends that the application, in so far as it seeks enlargement of time, is devoid of merit since the applicant failed to lodge a Notice of Appeal within the prescribed period and has not offered a satisfactory explanation for the delay. It further deposes that the delay of approximately one month is inordinate and unjustified, arguing that the applicant's Page 4 of 7

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explanation that it required time to analyse the impugned ruling and obtain legal advice does not Page 5 of 7

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constitute sufficient cause for extension of time. It maintains that the applicant has improperly amalgamated prayers for enlargement of time under Rule 4 and preservatory relief under Rule 5(2)(b) in a single application, thereby invoking the Court's jurisdiction in a procedurally defective manner. [7] It further depones that the intended appeal is unarguable and merely seeks to reopen issues that were properly determined by the High Court. It is contended that the learned Judge expressly observed that the parties remained at liberty to seek appropriate interim relief before the arbitral tribunal, and that the applicant has instead pursued the present proceedings in an attempt to circumvent the arbitration process and delay the completion of its development project. Accordingly, it urges the Court to find that no sufficient basis has been laid for the exercise of its discretion in favour of the applicant and to decline the prayer for enlargement of time with costs. [8] I have considered the application, the affidavit in support thereof, the replying affidavit filed in opposition thereto, and the rival submissions of the parties. The prayer presently falling for determination, as already stated, is whether the applicant has laid a sufficient basis for the exercise of this Court's discretion under Rule 4 of the Court of Appeal Rules to extend time for lodging and Page 6 of 7

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serving a Notice of Appeal. Page 7 of 7

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[9] The principles governing the exercise of the Court's discretion under Rule 4 are now well settled. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, the Court held that in deciding whether or not to extend time, the Court considers, inter alia, the length of the delay, the reason for the delay, the chances of the intended appeal succeeding if the application is granted, and the degree of prejudice to the respondent. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, reiterated and affirmed the above principles and went on to warn emphasize that extension of time is not a right but an equitable remedy available to a deserving party who satisfactorily explains the delay. [10] In the present application, the impugned ruling and order was delivered on 26th August, 2026, while the present application was filed on 22nd September 2026. The delay is therefore slightly under one month. In my view, such delay cannot be said to be inordinate. The applicant has explained that following delivery of the ruling, its advocates required time to study and analyse the decision, undertake legal research on the issues arising therefrom, advise on the viability of an appeal, and that in the intervening period the parties engaged in settlement negotiations Page 8 of 7 which ultimately

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aborted. While the explanation may not be entirely satisfactory in all respects, I am nonetheless explained persuaded that the Page 9 of 7 delay has been reasonably

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and does not disclose indolence, bad faith, or a deliberate disregard of the Rules of the Court. [11] I also bear in mind that at this stage the Court is not required to make definitive findings on the merits of the intended appeal. It is sufficient if the intended appeal is not frivolous. From the draft memorandum of appeal annexed to the application and the material placed before Court, the intended appeal raises arguable questions concerning the scope and application of Section 7 of the Arbitration Act, the nature of interim measures of protection available before arbitration, and the respective jurisdictions of the Court and arbitral tribunal. Without expressing any concluded view on those issues, I am satisfied that they are not fanciful, idle or frivolous points. [12] As regards prejudice, the respondent has not demonstrated any specific prejudice that cannot be compensated by an award of costs should the extension sought be granted. On the other hand, declining the application would have the effect of shutting the applicant out from the appellate process altogether. Consistent with the principle that disputes should, where possible, be determined on their merits rather than on procedural defaults, the scales of justice tilt in favour of sustaining the applicant's right of appeal. [13] In the circumstances, and guided by the principles enunciated Page 10 of 7

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in Leo Sila Mutiso v Rose Hellen Wangari Mwangi (supra), Fakir Page 11 of 7

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Mohamed v Joseph Mugambi & 2 Others [2005] eKLR, and Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others (supra), I am satisfied that the applicant has established sufficient cause for the exercise of this Court's discretion under Rule 4. [14] The prayer for enlargement of time is accordingly merited, and time for lodging and serving the Notice of Appeal is hereby extended. The Notice of Appeal lodged on 22 nd September, 2026, shall be deemed as duly filed and served upon payment of the requisite court fees, if any remain outstanding. The costs of the application shall abide the outcome of the intended appeal. Dated and delivered at Kisumu this 6th day of October, 2026. ASIKE-MAKHANDIA ………………... ………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 12 of 7

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