Syner Med Pharmaceuticals Limited v Super First Forwarders Limited & another (Civil Suit E054 of 2021) [2026] KEHC 4268 (KLR) (19 February 2026) (Ruling) Neutral citation: [2026] KEHC 4268 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MOMBASA CIVIL SUIT E054 OF 2021 F WANGARI, J FEBRUARY 19, 2026 BETWEEN SYNER MED PHARMACEUTICALS LIMITED ................................. APPELLANT AND SUPER FIRST FORWARDERS LIMITED .................................. 1ST RESPONDENT MOMBASA CONTAINER TERMINAL LIMITED .................. 2ND RESPONDENT RULING 1. This is a Ruling on an Application dated 16/07/2024. The Applicant sought for orders inter alia that time for filing the Notice of Appeal be extended and the Notice of Appeal filed on 04/12/2024 be deemed to have been filed within time, that at the 2nd Respondent be granted 7 days to file and serve the letter requesting for typed proceedings, that there be stay of execution of judgment and decree of 25/05/2023 pending the nearing and determination of this application and the intended appeal. The Costs of this application be provided for. 2. The Application is premised on the Grounds stated inter alia that judgment was delivered by this court on 25/05/2023 in the absence of the parties. The judgment was initially scheduled to be delivered on 05/05/2023 but the court was not sitting. On 03/12/2023, Mr. Mugambi, the counsel for the 2nd Respondent while carrying out research in a different matter came across the judgment on the appeal on Kenya Law Reports. By that time, the time within which the Notice of Appeal ought to have been filed and served had already lapsed. 3. Mr. Mugambi later left the firm of advocates representing the 2nd Respondent, and it is during the handing over and the reallocation of his files that it was realized that this matter had been overlooked and the present application was not filed on time. 4. The 2nd Respondent states that it has an arguable appeal with prospects of success. The party was ready and willing to abide by any order as to security as the court may direct. The Supporting Affidavit sworn https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4268/eng@2026-02-19 1
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by Maureen Alosa Oningo, counsel for the 2nd Defendant reiterates the grounds on the face of the application. 5. The Appellant in the Grounds of Opposition dated 27/09/2024 and Replying Affidavit dated 11/11/2024 stated that the 2nd Respondent was guilty of laches for filing the Notice of Appeal without leave of the court, and that this application was filed more than 7 months after filing the Notice of Appeal, which was filed 6 months out of time. The reasons given for filing the said pleadings out of time were not plausible and the court should disregard the same. 6. Further, the Appellant disclosed that the 2nd Respondent had already paid the decretal sum of Kshs. 10,085,098/= and what was outstanding was the interest payable and costs. The 2nd Respondent is said to have failed to meet the threshold for granting the orders for stay. It was prayed that the application by 2nd Respondent be dismissed wit costs to the Appellant. 7. The court directed that the application be canvassed by way of written submissions. Both parties complied by filing rival submissions. I have considered the submissions and authorities relied upon. Analysis 8. I have analyzed the Application, response, submissions and the authorities cited by the parties in support and in opposition to their respective positions. The issues for determination are; a. Whether the application has been overtaken by events b. Whether the Appellant has satisfied the conditions for the grant of stay of execution pending Appeal. 9. On the first issue, it has not been disputed that the decretal amount and interest has already been paid. The Applicant disclosed that the principal decretal sum had already been paid. In its application, the 2nd Respondent did not disclose that it had paid the principal decretal sum. The 2nd Respondent in its submissions dated 07/05/2025 admitted that on 24/08/2024, the 2nd Respondent paid the Kshs. 10,085,098 to the Appellant. 10. It is important to note that the said amount was paid after filing of this application. The 2nd Respondent did not give reasons as to why it paid the said amount of money. It has not been stated if the said amount was paid under duress. In John Mburu v Consolidated Bank of Kenya [2018] eKLR, the Court of Appeal the Privy Council decision in Pao & Others v Lau Yiu & Another [1979] 3 ALL E.R. 65, which addressed the issue of duress as follows: “ …Duress, whatever form it takes, is a coercion of the will so as to vitiate consent. Their Lordships agree...that in a contractual situation commercial pressure is not enough. There must be present some fact on which could in law be regarded as a coercion of his will, so as to vitiate his consent.............In determining whether there was a coercion of will such that there was no true consent, it is material to inquire whether the person alleged to have been coerced did or did not protest; whether, at the time he was allegedly coerced into making the contract, he did or did not have an alternative course open to him such as an adequate legal remedy, whether he was independently advised; and whether after entering the contract he took steps to avoid it…” 11. With no allegation of duress, the payment of the decretal sum is deemed to have been willingly done by the 2nd Respondent towards settling the decretal sum. Having proceeded to pay the decretal sum, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4268/eng@2026-02-19 2
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the horse already bolted. The application dated 16/07/2024 has already been overtaken by events and it would an academic exercise to consider the issue of stay of execution. 12. On the issue of costs, the court reserves the discretion to award or deny the same. Considering that the judgment of the court is partially satisfied and for avoidance of further proceedings before this court, each party is to bear its own costs. Determination 13. The upshot of the foregoing is that the following orders do issue: a. The Notice of Motion application dated 16/07/2024 having been overtaken by events is hereby dismissed; b. Each party to bear its own costs. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 19TH DAY OF FEBRUARY, 2026. …..…………… HON. F. WANGARI JUDGE OF THE HIGH COURT In the presence of; Mr. Musyoki Advocate h/b for Gor Advocate for the Appellant/ Respondent Ms. Lelu Advocate for the 2nd Respondent/ Applicant Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4268/eng@2026-02-19 3
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