Reliance Power Parts Ltd v Rajesh B. Vyas (Sued as the Holder of a Power of Attorney for Laxmidev Bachulal Vyas)

(2) This Application is predicated on the grounds advanced on the face of the said Notice of Motion and facts deponed in the Affidavit in support of the Motion sworn on even date by the Applicant. (3) In the said Notice of Motion, it is averred that the Business Rent Tribunal (hereinafter “the BPRT”) delivered its Ruling in BPRT Case No. E058 of 2025 on 2nd October 2025, thereby triggering the statutory timeline within which an Appeal ought to be lodged. It is averred that the Applicant being dissatisfied with the said Ruling, both in law and fact, promptly resolved to exercise the right of Appeal as provided under the law and duly instructed Counsel to initiate the appellate process. In addition, it is averred that immediately upon the delivery of the Ruling, the Applicant made several personal and formal visits to the BPRT Registry with a view to obtaining a copy of the Ruling, which was necessary for purpose of appreciating the BPRT’s reasoning, identifying errors of law and fact, and properly formulating the grounds in the Memorandum of Appeal, but despite the said Applicant’s diligence and persistence, the typed Ruling was not availed at the BPRT Registry, prompting the Applicant to formally write to the BPRT on 22nd December 2025, requesting for a typed Ruling, which request was duly transmitted to the BPRT via email and uploaded on the Judiciary e-filling Portal for record and follow-up. The Applicant complains that notwithstanding the said written request and numerous subsequent follow-ups, the BPRT is yet to supply the typed Ruling, thereby making it practically and procedurally impossible for the Applicant to lodge an Appeal within the prescribed statutory period. It is averred that the delay in filing the intended Appeal is therefore neither deliberate, inordinate, nor attributable to indolence or negligence on the part of the Applicant, but is wholly occasioned by circumstances beyond the Applicant’s control, namely the unavailability of the BPRT’s typed Ruling. In addition, the Applicant is of the view that on the balance of convenience, the overriding objective of the Court and the Constitutional imperative to administer substantive justice militate in favour of granting the Applicant an opportunity to ventilate the intended Appeal on its merits rather than having the matter determined on a technicality of time. Lastly, the Applicant avers that the intended Appeal raises weighty, bona fide and arguable issues of law and fact, including and not limited to misapprehension of evidence and erroneous Application of law, which issues warrant interrogation by the Court and disclose a high probability of success. (4) In the said Supporting Affidavit, the facts averred in the Notice of Motion are largely rehashed. In addition, the Applicant depones that the Honourable should grant leave to Appeal out of time since they stand to suffer grave prejudice and injustice. (5) In the Applicant written submissions dated 5 August 2026 and filed on even date, learned Counsel Mr. Songok, instructed by the firm Page 2 of 19 th

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Messieurs of J.K Kaptich & Associates Advocates, rehashed the substance of the Application. Learned Counsel proposed six issues for determination as follows: (i) Whether this Honourable Court has jurisdiction to enlarge time for filing the intended Appeal. (ii) Whether the Applicant has given satisfactory explanation for the delay. (iii) Whether ELC No. E069 of 2025, constitutes a parallel suit barring the intended Appeal. (iv) Whether the Respondent shall suffer prejudice if leave to Appeal out of time is granted. (v) Whether the Applicant has satisfied the principles for extension of time. sufficient and Who should bear costs? (6) Regarding the first proposed question whether this Honourable Court has jurisdiction to enlarge time for filing the intended Appeal, citing the provisions of section 79G CPA and Order 50 Rule 6 of the CPR, it is submitted that said statutes are meant to ensure that deserving litigants are not shut out from the seat of justice merely on account of procedural lapses where sufficient cause has been demonstrated. It is submitted that the power of this Honourable Court to enlarge time for filing an Appeal is discretionary. However, such discretion is not exercised capriciously or whimsically, but rather judiciously, upon sound legal principles and in a manner that advances the overriding objectives of the Court, namely the just, proportionate and expeditious determination of disputes. In this regard, counsel urges that this Court should be guided by the principles laid in the Supreme Court of Kenya (hereinafter “the SCORK”) decision in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others 120141 eKLR, which comprehensively set out the principles governing Applications for extension of time and likewise, in the celebrated decision of Leo Sila Mutiso v Rose Hellen Wangari Mwangi [19991 2 EA 231, the Court of Appeal (hereinafter “the COA”) held that in exercising its discretion to enlarge time, the Court ought to consider: (i) the length of the delay; (ii) the reason for the delay; (iii) the chances of the intended Appeal succeeding if the Application is granted; and (iv) the degree of prejudice that the Respondent is likely to suffer. It is further submitted that although delay is a factor, in and by itself is not a decisive factor especially if the explanation offered is reasonable and whether the justice of the case demands the intended Appeal to be heard on merit, placing reliance in Mwangi v Kenya Airways Ltd [2003] KLR. It is (vi) Page 3 of 19

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further argued that in County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR, the SCORK reiterated that the discretion to extend time exists to facilitate substantive justice and that it should not be exercised in a manner that deprives a litigant the constitutional right to be heard, citing Articles 48, 50(1) and 159(2)(d) of the Constitution. (7) Regarding the second proposed question as to whether the Applicant has offered a satisfactory explanation for the delay it is answered in the affirmative, stating that that a litigant who has diligently pursued a copy of a Court's decision should not be penalized for administrative delays within the Court registry, over which the litigant has no control. To hold otherwise would unjustly deny the Applicant its statutory right of Appeal due to circumstances solely attributable to the administrative of the Tribunal. (8) In relation to the third proposed question on whether ELC NO. E069 of 2025 constitutes to a parallel suit barring the intended Appeal, it is submitted ELC No. E069 of 2025 is founded upon a sale agreement entered into the parties in respect of Eldoret Municipality Block 7/53 and that the suit seeks enforcement of contractual and proprietary rights arising from that transaction, including specific performance, delivery of vacant possession, eviction, trespass, injunction, and enforcement of the contractual obligations contained in the sale agreement and the subsequent arrangements between the parties. In addition, it is argued that the two proceedings are anchored on distinct legal relationships in the sense that whereas one concerns the enforcement of a contract for the sale of land and proprietary rights, the other concerns the existence and regulation of an alleged landlord-tenant relationship, reasoning that the causes of action, the legal issues for determination, and the reliefs sought are therefore materially different and do not offend the doctrine against multiplicity of suits. (9) Lastly, relating to the question whether the Respondent shall suffer prejudice, it is respectfully submitted that Respondent has neither pleaded nor demonstrated any prejudice that they would suffer if the orders sought are granted and that the Respondent has not shown that the intended Appeal will occasion any injustice or place him in a position that cannot adequately be remedied by an award of costs. PART II: THE RESPONDENT’S CASE This Application is Opposed by the Respondent. (10) In his Replying Affidavit dated 19th June 2026 and filed on even date, the Respondent deposes that the Application is incompetent and unmerited and ought to be struck out with costs. It is deponed that the BPRT rendered its decision in BPRT Case Number E058 on (11) Page 4 of 19

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2025 on 2nd October 2025. It is deponed that this Application dated 17th April 2026, was however not filed until 5 th June 2026, more than eight (8) months after the decision of the BPRT. Further, it is deposed that no material has been placed before this Court to demonstrate that the Applicant did not make any effort to obtain the proceedings and ruling from the BPRT. It is further deposed that the alleged timelines for Application of the copies of the BPRT’s proceedings and rulings namely 22nd December 2025 was outside the statutory Appeal timelines of thirty (30) days. It is deposed that the Applicant is guilty of inordinate repeated and unexplained delay. Finally, it is deposed that the Applicant has parallel proceedings filed on the same cause of action being ELC E069 of 2025 and the filing of multiple suits on the same cause of action is an abuse of the Court process. In his written submissions dated 13th July 2026 and filed on the even date, learned Counsel Ms. Kabaillah instructed by the Firm of RMM Advocate LLP, proposed five questions for determination as follows: (12) (i) Whether the Applicant has demonstrated sufficient cause for extension of time; (ii) Whether the delay is inordinate and inexcusable; (iii) Whether the Applicant has approached the Court with clean hands; (iv) Whether the Application amounts to an abuse of the Court process; and (v) Who should bear the costs. In relation to the first proposed question whether the Applicant has demonstrated sufficient cause for extension of time, it is urged that the Applicant bears the burden to satisfy the conditions laid out in the Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR a Supreme Court decision as well as the Court of Appeal decision in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 which stipulated that for an Court to make a discretion decision in regards to allowing an Appeal out of time it must consider: (i) the length of delay; (ii) the reason for delay; (iii) the chances of success of the intended Appeal; and (iv) prejudice to the Respondent. (13) Regarding the second proposed question as to whether the delay is inordinate and inexcusable, it is urged that the Applicant seeks to excuse an extraordinarily long delay by alleging that typed proceedings and the ruling were unavailable. For the Respondent, it is contended that no evidence has been produced showing any effort (14) Page 5 of 19

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to obtain proceedings within the statutory period. It is argued that a litigant cannot remain inactive until statutory timelines lapse and thereafter rely on his own inaction as sufficient cause. In addition, the Respondent is of the view in regards to the ordinate delay, the Applicant elected to remain dormant as the ruling was delivered on 2nd October 2025, while the present Application was not filed until 5 th June 2026, more than eight months later. In addition, the Respondent points out that although the Motion is dated 17 th April 2026, it inexplicably remained unfiled until June 2026, demonstrating further unexplained delay. As to the third proposed question on whether the Applicant has approached the Honourable Court with clean hands, it is urged that the Applicant instituted ELC Case No. E069 of 2025, founded upon the same factual dispute involving the same parties and substantially similar reliefs and that the annexed Plaint demonstrates that the Applicant seeks declarations concerning the parties' relationship, vacant possession, eviction, trespass, permanent injunctions and other remedies arising from the same transaction. It is thus urged that existence of these proceedings demonstrate that the Applicant has not been prevented from pursuing legal remedies instead, he has elected to prosecute multiple proceedings arising from the same dispute while simultaneously seeking leave to revive an Appeal that had long become statute barred. (15) Finally, regarding whether the Application amounts to an abuse of the Court process, it is urged the institution of parallel proceedings while simultaneously seeking leave to Appeal out of time exposes the parties to conflicting decisions and amounts to an abuse of the Court process. (16) PART III: QUESTIONS FOR DETERMINATION From the Notice of Motion; the Replying Affidavit; and the rival written submissions, this Court has distilled three questions for determination as follows: (17) (i) Whether the Applicant has satisfied this Court that it has good and sufficient cause for not filing the Appeal in time as to warrant exercise of discretionary power in its favour, to extend time for filing the intended Appeal. (ii) Whether institution of Eldoret ELCLC Number E069 of 2025; Reliance Power Parts Limited vs. Rajesh B. Vyas (Sued as the Holder of a Power of Attorney for Laxmidev Bachulal Vyas), constitutes an abuse of the Court process Page 6 of 19

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and disentitles the Applicant from the equitable relief sought. (iii) Which party should bear the costs of this Application? PART IV: ANALYSIS AND DETERMINATION This Court now embarks on analysis of the law, examination of facts, evaluation of evidence and determination of each of the three questions, seriatim. (18) (i) Whether the Applicant has satisfied this Court that it has good and sufficient cause for not filing the Appeal in time as to warrant exercise of discretionary power in its favour, to extend time for filing the intended Appeal Before determining this Application, I find it instructive to take a deep dive into the law and legal principles which govern Applications seeking leave to file an Appeal out of time. (19) First and foremost, I am mindful of the position that an Appeal may be admitted out of time if the Applicant satisfies the Court that he had a “good and sufficient cause” for failure to file the Appeal in time. See section 79G of the CPA which provides that “Every Appeal from a subordinate Court to the High Court shall be filed within a period of thirty days from the date of the decree or order Appealed against, excluding from such period any time which the lower Court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an Appeal may be admitted out of time if the appellant satisfies the Court that he had good and sufficient cause for not filing the Appeal in time.” Henry Campbell Black, the learned author of the now locus classicus Dictionary in legal definitions popularly known as the Black’s Law Dictionary (Black’s Law Dictionary, Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern by Henry Campbell Black, M. A., Ninth Edition) defines “good cause” in the following terms at page 251 “good cause... A legally sufficient reason. • Good cause is often the burden placed on a litigant (usu. By Court rule or order) to show why a request should be granted or an action excused. The term is often used in employment-termination cases. — Also termed good cause shown; just cause; lawful cause; sufficient cause.” The same Dictionary, at page 1571, defines “sufficient cause” as follows “1. See good cause under cause (2). 2. Probable cause.” It follows that “good cause”, “sufficient cause”, “good reason” “legally sufficient reason”, “just cause”, “lawful cause”, and “probable cause”, are synonyms. (20) Page 7 of 19

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Second, the threshold of a “good and sufficient cause” is that explanation which is rational, plausible, logical, convincing, reasonable and truthful and which explanation must not leave doubts or unexplained gaps in the sequence of events, in a judge’s mind. See the decision of the COA in Attorney General v Law Society of Kenya & another [2013] KECA 372 (KLR), at paragraph 28, the COA laid down the threshold thereof as follows: “… Sufficient cause must therefore be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubts in a judge’s mind. The explanation should not leave unexplained gaps in the sequence of events.” (21) Third, an Applicant is not entitled to an order of extension of time ex debito justitiae since the decision to grant or decline an Application of this nature, is discretionary. See the language deployed in the said Proviso to section 79G of the CPA. See also inter alia, the Court of Appeal (hereinafter “the COA”) rendition in Mutiso v Mwangi [1999] 2 EA 231; the COA’s rendition in Mwangi v Kenya Airways Ltd [2003] KLR; the SCORK’s rendition in Salat v Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling); SCORK’s rendition in County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR, et alia. Discretion does not permit the Court to act arbitrarily according to men’s will and private affection but according to rules of law and equity. See Rooke’s case, 5 Rep. 99b (1598), cited in approval by Mativo, J. in Republic vs. Public Procurement Administrative Review Board & 2 others (2018) eKLR, where the Court attempted to elaborate the tenor of discretion as follows: “Discretion is a science, not to act arbitrarily according to men’s will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others or allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by the Constitution entrusted with.” It is in this context that the Court of Appeal stated in Christopher Kiprotich vs. Daniel Gathua & 5 others (1976) eKLR, that “Although the Court’s discretion in these matters is unfettered, it must nevertheless be exercised judicially. I would not say that this was the case here. In the circumstances of this case I would approve of the principle in Jamnadas v Soda v Gordhandas Hemraj, 7 ULR 7 that: Where a Defendant though in default appears before the Court and indicates that he has a Defence and shows the Court (22) Page 8 of 19

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what that Defence is, then if the Defence discloses some merits, and the Plaintiff can reasonably be compensated by costs for the delay, it is proper for the Court to take steps to try the case upon the merits, both sides being given a hearing. And if I may borrow the expression used before in these Courts, procedural rules are intended to serve as the handmaidens of justice, not to defeat it.” Per Wambuzi, P., (as he then was). Further, it was held in Pithon Waweru Maina vs. Thuka Mugiria (1983) eKLR, that “7. A discretionary power should be exercised judicially and in a selective and discriminatory manner, not arbitrarily and idiosyncratically. (Smith v Middleton [1972] SC 30) 8. The Respondent could have been compensated by costs for the delay occasioned by his Advocate’s dilatoriness and the Appellant should not have been denied a hearing because of his Advocate’s mistake even if it amounted to negligence, in the circumstances of this case…The Court has a very wide discretion under the order and rule and there are limits and restrictions on the discretion of the Judge except that if the Judgment is varied it must be done on terms that are just: Patel v EA Cargo Handling Services Ltd [1974] EA 75, 76 BC. This discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice: Shah v Mbogo [1969] EA 116,123 BC Harris J.” Per Potter and Kneller, JJA, (as they then were) and Chesoni, Ag. JA, (as he then was). Fourth, when considering such Applications, the main concern of the Court is to do justice to the parties. Accordingly, it should be remembered that the discretionary power is a facilitator of substantive justice and in this sense, it should not be exercised in a manner that deprives a litigant the constitutional right to be heard. See the SCORK rendition in County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR; Salat v Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling), et alia. See also Patel vs. East Africa Cargo Handling Service [1974] EA 75; and Branco Arabe Espanol vs. Bank of Uganda [1999] 2 EA 22. Although discretion is unfettered so as to facilitate justice. See Patel vs. E.A. Cargo Handling Services Ltd (1974) EA 75, where Duffus, V.P. (as he then was) reasoned that “The main concern of the Court is to do justice to the parties and the Court will not impose conditions on itself to fetter the wide discretion given to it by the rules.” See also the Court of Appeal decisions in Baraka Apparel EPZ (K) Ltd vs. Rose Mbula Ojwang T/A Faida 2002 Caterers (2007) eKLR; Esther Wamaitha Njihia & 2 others vs. Safaricom Ltd (23) Page 9 of 19

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(2014) eKLR; Branco Arabe Espanol vs. Bank of Uganda (1999) 2 EA 22; and Joseph Njuguna Thairu vs. City Council of Nairobi (2015) eKLR. In addition, in Kenya Commercial Bank Ltd vs. Nyantange & Another (1990) KLR 443, Bosire J. (as he then was) held that “1. Order IXA rule 10 of the Civil Procedure Rules donates a discretionary power to the Court to set aside or vary an ex-parte Judgment entered in default of appearance or Defence and any consequential Decree or order upon such terms as are just. 2. The discretion is a free one and is intended to be exercised to avoid injustice or hardship but not to assist a person guilty of deliberate conduct intended to obstruct or delay the course of justice.” Also, in Richard Ncharpi Leiyangu vs. Independent Electoral Boundaries Commission & 2 Others (2013) eKLR and CMC Holdings Ltd vs. James Mumo Nzioka (2014) eKLR, the Court of Appeal holds a view that a party should not punished, and discretion should be applied to ensure that a litigant does not suffer injustice or hardship as a result of an excusable mistake, inadvertence, accident or error. See also the Court of Appeal decision in Baraka Apparel EPZ (K) Ltd vs. Rose Mbula Ojwang T/A Faida 2002 Caterers (2007) eKLR. It follows that when confronted with such Applications, it should always be borne in mind that discretionary power should always be flexed leaning in the direction of avoiding injustice which would otherwise result if the Application is either allowed or disallowed or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice. See Shah vs. Mbogo & another [1967] 1 EA 116 and its Court of Appeal rendition in Mbogo and another vs. Shah (1968) 1 EA 93. Fifth, whether the Court ought to exercise the discretion to extend time is a consideration to be made on a case-to-case basis. See Salat v Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling); County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR, et alia. (24) Sixth, in exercising the discretionary power, since a Court should proceed judiciously as opposed to whim or caprice, the Court should be guided by the following factors: (i) the length of the delay; (ii) the reason for the delay; (iii) possibly, the chances of the intended Appeal succeeding if the Application is granted; and (iv) the degree of prejudice the Respondent is likely to suffer if the Application is granted. See the cause celebre decision in Mutiso v Mwangi [1999] 2 EA 231 [hereinafter “the Mutiso case”] - per Gicheru, Lakha & Bosire JJA (as they then were) where the COA laid down the matters or factors the Court should take into account in deciding in determining an Application seeking (25) Page 10 of 19

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extension of time to file an Appeal out of time. The COA stated thus: “It is now well settled that the decision whether or not to extend the time for Appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: firstly, 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 degree of prejudice to the Respondent if the Application is granted.” See also Mwangi v Kenya Airways Ltd [2003] KLR. Seventh, however, the list of factors set out above is not exhaustive. See another COA decision in Mwangi v Kenya Airways Ltd [2003] KLR [hereinafter “the Mwangi case”], per Omolo, Tunoi & Keiwua JJA (as they then were). In this connection, Odek, JA in Edith Gichugu Koine vs. Stephen Njagi Thoithi [2014] eKLR, expressed a view thus: “Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the Respondent if the Application is granted, and whether the matter raises issues of public importance, amongst others...” (26) Eighth, although delay is a factor, in and by itself is not a decisive factor in circumstances where the explanation offered is reasonable and in further circumstances where the justice of the case demands the intended Appeal to be heard on merit. See the Mwangi case. (27) Ninth, although the chances of the Appeal succeeding if the Application is granted is a factor, it is prudent to consider it but it’s not a mandatory not that it must be considered. See the Mwangi case; and the COA decision in Thuita Mwangi v Kenya Airways Ltd [2003] KECA 201 (KLR). (28) Tenth, in an Application to extend time to Appeal, there is no legal requirement that pleadings and a copy of the judgment should be attached to the Application so as to enable the judge to determine the merits or otherwise of the proposed Appeal. See the Mwangi case. (29) Eleventh, the whole time involved in delay must be explained to the satisfaction of the Court. See Salat v Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling); County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR, et alia. (30) Twelfth, the Application should be brought without undue delay. See Salat v Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014] KESC 12 (KLR) (31) Page 11 of 19

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(Civ) (4 July 2014) (Ruling); County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR, et alia. Thirteenth, the nature of the action should be considered. In this favour, in public interest litigation cases, public interest ought to be a consideration for extending time. See SCORK in Salat v Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling); SCORK in County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR; COA in Edith Gichugu Koine v Stephen Njagi Thoithi [2014] KECA 485 (KLR), et alia. (32) Fourteenth, the Court is duty-bound to ensure that the Application is considered in consonance with the overriding objective of civil litigation, that is to say, that grant or disallowance of the Application is promotes a just, expeditious, proportionate and affordable resolution of disputes before the Court. See Charles Karanja Kiiru vs Charles Githinji Muigwa [2017] KECA 131 (KLR); Kiu & another v Khaemba & 3 others (Civil Appeal (Application) E270 of 2021 [2021] KECA 318 (KLR; Hilda Kaari Mwendwa vs. Zakayo M. Magara & 2 Others [2016] eKLR & Kaplan & Stratton vs. L.Z. Engineering Construction Limited & 2 others [2000] eKLR ; Aviation Cargo Support Limited vs. St. Mark Freight Services Limited [2014] Eklr; Edith Gichugu Koine vs. Stephen Njagi Thoithi [2014] eKLR; Sammy Mwangi Kiriethe & 2 Others vs. Kenya Commercial Bank [2020] eKLR; Moroo Polmers Limited vs. Wilfred Kosyoki Willis [2019] eKLR. (33) Fifteenth, there is no fixed or inflexible period or maximum or minimum period of delay set out under the law to amount to unreasonable delay. What distinguishes one from the other are the for the delay and whether the explanation meets the threshold of a “good and sufficient cause”, which meets the threshold of being rational, plausible, logical, convincing, reasonable and truthful and which explanation must not leave doubts or unexplained gaps in the sequence of events in a judge’s mind. See the COA decision in Chemaringo v Kibet (Civil Application 91 of 2017) [2018] KECA 701 (KLR) (22 March 2018) (Ruling), where the court expressed a judicial view that “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 favorably exercisable.” (34) Page 12 of 19

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Sixteenth, and finally, the burden of laying a basis to the satisfaction of the Court about existence of the said factors lies with the Applicant. See sections 107,108 and 109 of the Evidence Act as construed in Salat v Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling); County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR, et alia. (35) Having laid the framework within which this Application will be determined, I now turn to consider whether the Applicant has discharged its burden in respect to the four primary factors in the Mutiso case and amplified in the Mwangi case namely: (i) the length of the delay; (ii) the reason for the delay; (iii) possibly, the chances of the intended Appeal succeeding if the Application is granted; and (iv) the degree of prejudice the Respondent is likely to suffer if the Application is granted. (36) Since the factors are knottily joined at the hip, I will discuss all the four factors contemporaneously. Beginning with length of the delay and the reason for delay, in relation to Appeals to the ELC against the decision of a subordinate Court, since section 79G of the CPA grants a desirous appellant a window of thirty days from the date of the decree or order Appealed against, excluding from such period any time which the lower Court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order, it follows that first, the thirty days are not necessarily computed on a back-to-back uninterrupted basis especially in circumstances where the lower Court has certified a specified period as having been requisite for preparation and delivery to the appellant of a copy of the decree or order (vide a document which is now popularly known as a Certificate of Delay). It further follows that the back-to-back uninterrupted model of computing days applies in circumstances where the lower Court has not certified a specified period as having been requisite for preparation and delivery to the appellant of a copy of the decree or order. In this Application, no such Certificate of Delay was exhibited by the Applicant. It follows that the Applicant was expected by law to lodge an Appeal by 2 nd November 2025. Having approached the Court on the 5 th day of June 2026, computing from 3rd November 2026, it follows that there was a delay of approximately seven months. This is the period the Applicant is expected to assign a “good and sufficient cause” to the satisfaction of this Court (which meets the threshold of being rational, plausible, logical, convincing, reasonable and truthful and which explanation must not leave doubts or unexplained gaps in the sequence of events in a judge’s mind). Second, regarding length of the delay, where no such Certificate of Delay is exhibited by the Applicant, I must underline that there is no fixed threshold of a period which is unyieldingly deemed unreasonable (37) Page 13 of 19

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delay, per se. It all depends on the unique circumstances of the case and the primary guiding ray is whether the explanation advanced to explain the delay is rational, plausible, logical, convincing, reasonable and truthful and which explanation must not leave doubts or unexplained gaps in the sequence of events in a judge’s mind. The Applicant explained that the delay was not occasioned by indolence, negligence or deliberate inaction but by the Applicant's unsuccessful efforts to obtain a copy of the BPRT’s Ruling, despite making several visits to the Registry, writing a formal request dated 22nd October 2025 and subsequently a letter dated 2nd February 2026. The Applicant claims that it continued to receive assurances from the Registry that the Ruling would be uploaded, thereby creating a legitimate expectation that the same would made available within a reasonable period. (38) On the other hand, the Respondent is of the view that the Applicant seeks to excuse an unreasonable delay by using the excuse of typed proceedings and the Ruling. According to the Respondent, no written request for proceedings was made until the 22nd December 2025, approximately two months after the statutory Appeal period had already lapsed and there is absolutely no explanation for the period between October and December 2025. In addition, the Respondent argues that since the Ruling was delivered on 2nd October 2025 and this Application was not filed until 5 th June 2026, more than eight months later. The Respondent further complains that although the Motion is dated 17th April 2026, it inexplicably remained unfiled until 5th June 2026, demonstrating further unexplained delay. (39) Ultimately, the elephant in the room is whether the Applicant has demonstrated to the satisfaction of this Court good and sufficient cause (which meets the threshold of being rational, plausible, logical, convincing, reasonable and truthful and which explanation must not leave doubts or unexplained gaps in the sequence of events in a judge’s mind). (40) On one hand, the generally accepted reasons which can pass the threshold of good and sufficient cause include delays by the trial Court in preparing, certifying, and supplying the mandatory copies of the decree, order, or typed proceedings; severe illness, incapacitation, or sudden indisposition of the appellant or their legal counsel handling the matter; and bona fide (good faith) mistakes or inadvertence by an advocate that are excusable and not a result of gross negligence or deliberate inaction. On the other hand, and broadly speaking, laxity, forgetfulness, or dilatory conduct by the party or advocate; vague claims of financial constraints or generalized administrative delays without concrete proof or clear timelines; and renegotiating outside Court or engaging in academic exercises with no intention of diligent compliance, are unacceptable. (41) Page 14 of 19

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Having carefully considered the explanation, this Court finds it imperfect with a myriad of gaps. The Applicant has not satisfactorily accounted for the entire period between the expiry of the statutory period and the filing of the present Application and the Applicant has also not adequately accounted for the further delay between 17 th April 2026 when the Application was prepared and 5th June 2026, when it was filed. This factor weighs against the Applicant. However, it is now a settled principle that although delay is a factor, in and by itself is not a decisive factor in circumstances where the explanation offered is reasonable and in further circumstances where the justice of the case demands the intended Appeal to be heard on merit. In this connection, this Court cannot turn a blind eye to the fact that the Applicant did demonstrate its fervent intention to challenge the BPRT’s decision and it placed before this Court, however unsatisfactory, efforts to obtain the Ruling. Proceeding on the principle that although delay is a factor, in and by itself is not a decisive factor in circumstances where the explanation offered is reasonable and in further circumstances where the justice of the case demands the intended Appeal to be heard on merit and having perused the Draft Memorandum of Appeal annexed to the Affidavit in support of the Motion, this Court finds that the intended Appeal cannot be said to be frivolous. In the circumstances of this case, I am persuaded that the interests of justice would be better served by allowing the Applicant an opportunity to ventilate the intended Appeal, notwithstanding the shortcomings in its explanation for the delay. This conclusion is reached not because the delay was insignificant or fully explained, but because, when the factors are considered cumulatively, the Applicant has demonstrated sufficient cause to justify the exercise of this Court’s discretion under the Proviso to section 79G of the CPA. Concerning possible prejudice to the Respondent, the Respondent has not demonstrated specific irreparable prejudice beyond the ordinary inconvenience and expense associated with continued litigation. (42) Consequently, this Court finds that the Application has crossed the requisite threshold for such Applications, to warrant the exercise of this Court's discretionary power in its favour of the Applicant under section 79G of the CPA. (43) (ii) Whether institution of Eldoret ELCLC Number E069 of 2025; Reliance Power Parts Limited vs. Rajesh B. Vyas (Sued as the Holder of a Power of Attorney for Laxmidev Bachulal Vyas), constitutes an abuse of the Court process and disentitles the Applicant from the equitable relief sought On the 17th day of September 2026, this Court delivered a Ruling in relation to the Preliminary Objection which was filed by the Respondent herein, in which the Court pronounced itself on the (44) Page 15 of 19

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following questions: “(i) Whether the Defendant’s Objections – anchored on the doctrine of sub judice under section 6 of the CPA and the doctrine of res judicata under section 7 of the CPA – have surmounted the test of a Preliminary Objection (as to be sustainable); and (ii) Whether the present suit is barred by the doctrine of sub judice under Section 6 of the Civil Procedure Act on account of pending before the BPRT, under Case No. E058 of 2025; (iii) Whether the present suit is barred by the doctrine of res judicata under Section 7 of the Civil Procedure Act on account of having been heard and determined by the BPRT in Case No. E058 of 2025.” I must underline that the foregoing questions and this question (whether institution of ELCLC Number E069 of 2025 amounts to an abuse of the Court process) are two sides of the same coin. It will thus be important to consider the trajectory taken in the Ruling of this Court dated 17th September 2026. In that Ruling, this Court reached a conclusion, in relation to the question whether the Defendant’s Objections – anchored on the doctrine of sub judice under section 6 of the CPA and the doctrine of res judicata under section 7 of the CPA – have surmounted the test of a Preliminary Objection (as to be sustainable), that the objections were not anchored on a pure point of law, since they were blemished with disputed, contested, unascertained and immediately unascertainable facts. On this basis, this Court expressed a judicial view that it will be judicious to hear the main suit and determine all the contested factual issues in one Judgment since taking that route will occasion no irreparable prejudice to any party. Having reached this conclusion, the other merit questions were thus not determined. Accordingly, this Court dismissed the Defendant’s Preliminary Objection. (45) In context of the trajectory this Court took in the said Ruling in Eldoret ELCLC Number E069 of 2025; Reliance Power Parts Limited vs. Rajesh B. Vyas (Sued as the Holder of a Power of Attorney for Laxmidev Bachulal Vyas), and since this question concerns itself with the same matter, it would be certainly not only injudicious but also incompatible with the said holding and ratio descidendi to conclude that institution of Eldoret ELCLC Number E069 of 2025; Reliance Power Parts Limited vs. Rajesh B. Vyas (Sued as the Holder of a Power of Attorney for Laxmidev Bachulal Vyas), constitutes an abuse of the Court process and disentitles the Applicant from the equitable relief sought. (46) (iii) Which party should bear the costs of this Application? Page 16 of 19

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The law on costs as I discern it is that first, an award of costs is discretionary. Second, save where costs and interest are compromised, the Court reserves the discretionary power to award. See Morgan Air Cargo Ltd vs. Everest Enterprises Ltd (2014) eKLR, Gikonyo, J. Third, even where a suit has been compromised without including costs in the compromise, the discretion of the Court aforesaid remains unscathed. See Rose Kaume & Another vs. Stephen Gitonga Mbaabu & Another [2016] eKLR, per C. Kariuki, J. (47) How then is this discretion exercised? Discretion is not the same thing as carte blanche. Beacons demarcating how discretion is exercised are as follows: (48) (i) First, discretion ought to be exercised with circumspection and judiciously. See Christopher Kiprotich vs. Daniel Gathua & 5 others [1976] eKLR; Mbogo and Another vs. Shah [1968] EA 93 and Mohindra vs. Mohindra (1953) 20 EACA 56. Speaking of discretion, Lord Halsbury L. C., in the case of Sharp vs. Wakefield [1891] 64 L.T Rep. 180 Ap. Ca.173 held that: “When it is said that something is to be done within the discretion of the authorities, that thing is to be done according to the rules of reason and justice, not according to private opinion, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular. It must be exercised within the limit to which an honest man, competent to the discharge of his office, ought to confine himself.” In Rooke’s case, 5 Rep. 99b (1598), adverted to in approval by Mativo, J. in Republic vs. Public Procurement Administrative Review Board & 2 others [2018] eKLR, the Court attempted a definition of discretion as follows: “Discretion is a science, not to act arbitrarily according to men’s will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others or allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by the Constitution entrusted with.” (ii) Second, costs follow the event unless the Court finds a good cause to negate this trajectory. See Cecilia Karuru Ngayu vs. Barclays Bank of Kenya & another [2016] eKLR). In this context, the meaning ascribed to the words “costs shall follow the event” is that the party who calls forth the event by Page 17 of 19

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instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the Defendant or Respondent will bear the costs. See the seminal works of Kuloba, J. (as he then was), Judicial Hints on Civil Procedure 2nd edition at page 99; Dipchem East Africa Limited vs. Karutturi Limited (In Receivership) [2015] eKLR, per Gikonyo, J.; Cecilia Karuru Ngayu vs. Barclays Bank of Kenya & Another (2016) eKLR, per Mativo, J.; and Jasbir Singh Rai & 3 others vs. Tarcholan Singh Rai & 4 others (2014) eKLR, per Mutunga, CJ & P (as he then was) Tunoi, Ojwang and Rawal, SCJJ (as they then were) Ibrahim and Wanjala, SCJJ. (iii) Third, and closely intertwined with the second is that costs should not be used to penalize the losing party but rather to compensate the successful party for the trouble invested in the prosecuting or defending the suit. See Joseph Oduor Anode vs. Kenya Red Cross Society [2012] eKLR, per GV odunga, J. (as he then was); Mndaka Mbiuki v James Mbaabu Mugwiria 2020KEHC8561(KLR), per A. Mabeya, J. (iv) Fourth, and also closely connected with the second and third is that the purpose served by an award of costs is guided by the principle restitution in integrum i.e to reimburse the successful party the money expended in the case. See the SCOK decision in Jasbir Singh Rai & 3 others vs. Tarcholan Singh Rai & 4 others (2014) eKLR, per Mutunga, CJ & P (as he then was) Tunoi, Ojwang and Rawal, SCJJ (as they then were) Ibrahim and Wanjala, SCJJ. (v) Fifth, and too connected to the second, third and fourth beacons is that a successful party should ordinarily be awarded costs unless its conduct is such that it would be denied costs or the successful issue was not attracting costs. See Orix Oil (Kenya) Ltd vs. Paul Kabeu & 2 Others (2014) eKLR; and Morgan Air Cargo Ltd vs. Everest Enterprises Ltd (2014) eKLR, Gikonyo, J. Considering that the special circumstances of this Application, this Court deems it judicious to exercise its discretionary power in the direction of ordering that the costs incurred in this Application shall abide the outcome of the Appeal. (49) PART VI: DISPOSITION th (50) Wherefore, the Applicant’s Notice of Motion dated 17 April 2026 and filed on 5th June 2026 is found meritorious and allowed in the following terms: Page 18 of 19

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(i) Pursuant to the powers vested in this Court by the Proviso to section 79G of the CPA, leave is hereby granted to the Applicant to file and serve out of time, within a period of 14 days, its Memorandum of Appeal against the decision of the Business Premises Rent Tribunal delivered on 2nd October 2025 in BPRT Case No. E058 of 2025. (ii) Upon filing, within a period of 30 days from the date of filing the Appeal, in accord with section 79B of the CPA and Order 42 Rule 11 of the CPR, the Deputy Registrar shall place the file before the allocated Court in Chambers, for perusal and directions of the Court on admission and service of the Appeal. (iii) Upon issuance of directions on admission and service of the Appeal, the Applicant is directed to take all necessary steps to prosecute the intended Appeal expeditiously and in accordance with the applicable law and directions of the Court. (iv) The intended Appeal shall be heard by any other ELC in Eldoret, except ELC 3. (v) The costs of this Application shall abide by the outcome of the Appeal. (vi) This file is consequently marked as closed. Virtually Delivered, Signed and Dated in ELC Eldoret this 2 nd day of October 2026 ..…………….………… C.N. Ondieki Judge In the presence of: Advocate for the Plaintiff/Applicant: No Appearance Advocate for the Defendant/Respondent: Ms. Kabaillah for Mr. Mutiso Court Assistants: Ms. Chepkoech & Ms. Juma Page 19 of 19

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