APS Baraka Sacco Society Ltd v Joseph (Civil Appeal E281 of 2023) [2026] KEHC 11713 (KLR) (Commercial and Tax) (23 July 2026) (Ruling)

APS Baraka Sacco Society Ltd v Joseph (Civil Appeal E281 of 2023) [2026] KEHC 11713 (KLR) (Commercial and Tax) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11713 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Appeal E281 of 2023 BK Njoroge, J July 23, 2026 Between APS Baraka Sacco Society Ltd Appellant and Agnes Ndinda Joseph Respondent Ruling 1.The Applicant filed the Notice of Motion dated 23rd February, 2024 seeking the following orders:a)The Court to grant the Applicant leave to lodge an Appeal out of time against the decision in the Cooperative Tribunal at Nairobi in case number 217 of 2021 made on 21st September 2023.b)Upon grant of leave to appeal out of time, the Memorandum and Record of Appeal lodged herein be deemed as duly filed.c)The costs of this application be provided for. 2.The Application was supported by the Affidavit of Thomas Osoro. He stated that the judgment was delivered on 21st September, 2023 in favour of the Respondent. That being dissatisfied with the entire decision, the Applicant intends to appeal. The Applicant attributed the delay in filing the appeal to issues with the e-filing system, particularly in processing the invoice for payment, as well as the unavailability of the certified proceedings required to prepare the record of appeal. The intended appeal raises arguable issues with high chances of success. That the application has been made promptly and in good faith. The Court has jurisdiction to determine it. That the Applicant will suffer prejudice if the orders sought are not granted, while the Respondent will suffer no prejudice if the application is allowed. 3.In response, the Respondent filed the Replying Affidavit sworn on 19th March, 2025. The Respondent stated that judgment in Co-operative Tribunal Case No. E217 of 2021 was delivered on 21st September, 2023 in the presence of both parties. That a 30-day stay of execution was granted to the Applicant. Upon the Applicant's failure to satisfy the decree or file an appeal, execution proceedings commenced in November 2023. This culminated in warrants of attachment and a proclamation. The Applicant subsequently sought leave to appeal out of time and a stay of execution. The Application was granted on 4th December, 2023. This was on condition that Kshs. 1,200,000 be deposited in a joint interest-earning account and throw-away costs of Kshs. 10,000 be paid. The stay was to subsist for one year upon compliance. 4.The Respondent contended that despite repeated extensions and indulgence by the Court, the Applicant failed to file the appeal or comply with subsequent directions, thus necessitating several mention dates. Although the present application was eventually served in March 2025 after being overlooked in Counsel's spam folder, the Respondent maintained that the Applicant has consistently delayed the matter without justification. That this has denied the Respondent the fruits of a judgment delivered over one and a half years earlier. The application is therefore described as frivolous, an abuse of the Court process, and deserving of dismissal with costs. Issues for determination 5.After carefully considering the Application, response, and the written submissions, the singular issue for the Court’s determination is:a.Whether the Court should exercise its discretion to grant the applicant leave to file his appeal out of time. Analysis 6.The power of the Court to grant leave for filing an appeal out of time is provided under Section 79 of the Civil Procedure Act as follows:“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.” 7.While Section 95 of the Civil Procedure Act provides as follows:“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired." 8.In considering such applications, the fundamental non-exhaustive principles governing the exercise of judicious discretion for the extension of time were established by the Supreme Court of Kenya in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR). 9.Equally, the Court of Appeal in Edith Gichugu Koine v Stephen Njagi Thoithi [2014] KECA 485 (KLR) held: -“………..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 – See Fakir Mohamed V Joseph Mugambi & 2 others, Civil Application Nai. 332 of 2004 (unreported). There is also a duty now imposed on the Court under sections 3A and 3B of the Appellate Jurisdiction Act to ensure that the factors considered are consonant with the overriding objective of civil litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the Court.” 10.In considering the period of delay, the Court notes that judgment was delivered on 21st September, 2023. Thereafter, the Applicant sought an order of stay of execution which was granted on 4th December, 2023 under the following terms;a)That the Application dated 30th November,2023 is allowed on terms that an order of stay of execution pending the hearing and determination of the Appeal is issued on condition that the Appellant shall deposit Kshs. 1,200,000.00 in a joint interest earning account in the names of the Advocates within 14 days failing which in court.b)That upon compliance the order of stay shall remain in force for a period of one year unless extended by the court.c)That the Appellant shall pay costs of Kshs. 10,000.00 to the Respondent within 14 days.d)That Mention on 28th February,2024 before the Deputy Registrar to confirm filing of the Appeal. 11.The Applicant stated that it complied with the above orders and as shown in the documents availed the amount of Kshs. 1,200,000.00 was deposited on 20th December, 2023 which was outside the 14 days granted by the Court. It is noteworthy that the stay was to remain in force upon compliance with this order, which the Applicant failed to comply with. There was to be a mention before the Deputy Registrar to confirm filing of the Appeal on 28th February, 2024. Instead, the Applicant filed this Application for extension of time dated 23rd February, 2024. 12.The reason given for the delay by the Applicant is that the certified copies of the proceedings from the Tribunal were requested for on 22nd September, 2023, and the Applicant only got them on 14th March, 2024. However, no proof was adduced to confirm this position. 13.The Court notes that the Applicant already failed to comply with the initial orders of the Court within the prescribed timelines. Compliance in terms of provision of security came after the period prescribed by the Court. The Applicant submits that it has now obtained the requisite proceedings that are necessary for the filing of a Record of Appeal. 14.The Court exists for purposes of doing justice. The Court has to balance between the right of a party to pursue its appeal against the right of a successful Decree holder to recover and enjoy the fruits of her judgment. In between stands the issue of delay. In this particular case the Applicant has not exhibited zeal in pursuing this Appeal. 15.This Court is called upon to exercise its discretion and in doing so it has to act judiciously and not capriciously. This Court leans towards ensuring parties get substantive justice which would mean having the Appeal heard and determined on merits. 16.What tips the Court’s discretion is that the security was provided and is held in a joint interest earning account in the name of Counsel for the parties. Therefore, as the Appeal is being argued, the risk of the Respondent failing to recover the Decree if she is ultimately successful is minimized. 17.The Court is persuaded to allow the Application. 18.As to costs, the same lie at the discretion of this Court and costs ordinarily follow the event. Inasmuch as the Applicant has succeeded, it has not recommended itself for an order for costs. This is because there has been some delay. For that reason, there shall be no orders as to costs. 19.To fast-track this Appeal it is transferred to the newly established Tribunals Appeals Division which is now handling all appeals emanating from Tribunals. Determination 20.The Appellant/Applicant’s application by way of a Notice of Motion dated 23rd February, 2024 is allowed in the following terms:a.This Honourable Court HEREBY grants the Applicant leave to lodge an Appeal out of time against the decision in the Cooperative Tribunal at Nairobi in case number 217 of 2021 made on 21st September, 2023.b.Upon granting of leave to appeal out of time, the Memorandum and Record of Appeal lodged herein are HEREBY deemed as duly filed.c.There shall be no orders as to costs.d.For purposes of expediting the hearing and disposal of the Appeal, this matter is HEREBY transmitted to the Tribunals Appeals Division established within the Milimani High Court. The Deputy Registrar of this Court to facilitate the expedited transmission of this file forthwith, and thereafter close this file within the Commercial and Tax Division. 21.It is so ordered. DATED, SIGNED AND DELIVERED AT MILIMANI THIS 23RD DAY OF JULY, 2026.NJOROGE BENJAMIN K.JUDGEIn the presence of:Miss Maina holding brief for Mr. Njiraini for the Appellant/Applicant.Mr. Asieyo holding brief for Mr. Nzavi for the Respondent/RespondentMr. John Paul - Court Assistant