Boniface Karanja v KMA Housing Co-operative Society Ltd

Karanja v KMA Housing Co-operative Society Ltd (Tribunal Appeal E015 of 2025) [2026] KEHC 13394 (KLR) (Civ) (9 September 2026) (Ruling) Neutral citation: [2026] KEHC 13394 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Tribunal Appeal E015 of 2025 AC Mrima, J September 9, 2026 Between Boniface Karanja Appellant and KMA Housing Co-operative Society Ltd Respondent Ruling Background 1.Boniface Karanja, the Appellant/Applicant herein, instituted Nairobi Cooperative Tribunal Case No. 753 of 2019 [hereinafter referred to as ‘the suit’) seeking among other reliefs, a refund of Kshs. 855,000/- paid as a deposit for a house in KMA Housing Co-operative Society Ltd, the Respondent’s housing project. 2.On 27th February 2025, the Tribunal delivered its judgment dismissing the Applicant’s claim. As a result, the instant application was preferred. The Application: 3.The Applicant filed an application by a Notice of Motion dated 28th May 2025 seeking the following orders: - 1.Spent. 2.That this Honourable Court be and is hereby pleased to grant leave to the Applicant to appeal out of time against the entire judgment of the Co-operative Tribunal at Nairobi dated and delivered on 27th February 2025 in Co-operative Tribunal Case No. 753 of 2019. 3.That the Memorandum of Appeal dated 23rd May 2025, filed on the same date and annexed herein be admitted. 4.That costs of the application abide the outcome of the appeal. 4.The application was supported by the Affidavit of Boniface Karanja, sworn on 28th May 2025. The Applicant deposed that on 27th February 2025, when the matter was slated for judgment, he attended court physically while his advocates attended virtually, and both were informed by the registry personnel and in the cause list that the judgment was not ready and had been deferred to 27th March 2025. He further averred that upon making physical inquiries on 27th March 2025, his advocate was informed that the judgment had in fact been delivered on 27th February 2025, but the file was with the secretary for typing and would subsequently be uploaded to the Case Tracking System (CTS).5.It was his case that the judgment was eventually uploaded on 16th April 2025, after which he engaged in discussions with his advocates to explore legal remedies before filing the Memorandum of Appeal on 23rd May 2025, a delay he contended was reasonable and not occasioned by his own indolence. The Submissions 6.In the written submissions dated 27th October 2025, the Appellant submitted that the Court is vested with the discretion to extend time for filing an appeal under Section 79G of the Civil Procedure Act and Section 81(1) of the Co-operative Societies Act. It was argued that the delay should be calculated from 16th April 2025 when the judgment was uploaded to the CTS, meaning the Memorandum of Appeal was filed effectively out of time by only 6 days. 7.The Applicant called to its aid the principles enunciated in Mwangi -vs- Kenya Airways Limited (2003) eKLR and Samuel Kung’u Waithaka -vs- Bus Car East Africa Ltd [2019] KEHC 453 (KLR), to advance the position that the Court must consider the period of delay, reasons for the delay, arguability of the appeal, and the degree of prejudice to the Respondent. 8.The Appellant contended that reasons for the delay had been provided. To that end it referred to the decision in Mwangi & 2 others -vs- Kanyamwi Trading Company Limited [2015] KECA 967 to assert that the explanation was plausible and not based on guesswork. 9.As regards the intended appeal the appellant submitted that it is arguable as the Tribunal erred in finding that the deposited funds were utilized to purchase land without the Respondent providing any sale agreement or proof of funds utilization. Drawing from Andrew Kiplagat Chemaringo -vs- Paul Kipkorir Kibet [2018] KECA 701 (KLR), the Appellant maintained that an arguable appeal does not necessarily mean one that must succeed, but rather one that raises valid issues for determination. 10.The Appellant asserted that the Respondent would suffer no prejudice as there was no monetary award or costs granted in its favour. He prayed that the application be allowed as prayed. The Respondent’s Case: 11.KMA Housing Co-operative Society Ltd opposed the Application through a Replying Affidavit sworn by Ray Onoka Aboge on 8th August 2025. He averred that the Application was filed three months after the judgment was delivered and two months after the statutory period lapsed, a period which constituted an inordinate and insufficiently explained delay. 12.He deposed that the Tribunal’s judgment dismissing the claim with no order as to costs was a negative order incapable of execution, and that the appeal raised no pertinent issues of law, thereby rendering it unarguable and an abuse of the court process. The Submissions 13.In its written Submissions dated 3rd December 2025, the Respondent submitted that the Applicant failed to meet the threshold under Section 79G of the Civil Procedure Act and Section 81(1) of the Co-operative Societies Act. In reference to the decision in Diplack Kenya Limited vs William Muthama Kitonyi [2018] eKLR, the Supreme Court’s decision in Nicholas Kiptoo Korir arap Salat -vs- IEBC and 7 Others [2014] eKLR, and Paul Musili Wambua -vs- Attorney General & 2 Others [2015] eKLR, the Respondent argued that extension of time is an equitable remedy available only to a deserving party who lays a satisfactory basis for the delay. 14.The Respondent contended that even if time were computed from the CTS upload date of 16th April 2025, the Applicant still waited for over one and a half months to file the motion. In relying on the case of Bi-Mach Engineers Ltd -vs- James Kahoro Mwangi [2011] eKLR and Monica Malel & Anor -vs- R [2008], it was it case that advocates’ internal consultations and the Applicant’s old age do not constitute sufficient cause for delay. In addition, it referred to the case of Joseph Gitahi Gachau & Another -vs- Pioneer Holdings (A) Ltd., to advance the position that the intended appeal is frivolous as it merely raises factual disagreements rather than points of law. In the end, it prayed that the application be disallowed. Analysis and Determination 15.Having carefully evaluated the pleadings, the affidavits on record, and the submissions by both parties, the following two issues arise for determination: -i.Whether the jurisdiction of this Court has been properly invoked.ii.If the answer in [i] above is in the affirmative, whether the application meets the threshold for extension of time. 16.A consideration of the above issues now follows. (a) Whether the Jurisdiction of this Court has Been Properly Invoked: 17.The jurisdiction of this Court sitting as an appellate Court is created by Section 81 of the Cooperative Societies Act in the following terms; 81.Appeal to High Court(1)Any party to the proceedings before the Tribunal who is aggrieved by any order of the Tribunal may, within thirty days of such order, appeal against such order to the High Court: Provided that the High Court may, where it is satisfied that there is sufficient reason for so doing, extend the said period of thirty days upon such conditions, if any, as it may think fit 18.Based on Section 81(1) of the Cooperative Societies Act, the statutory timeline to lodge an appeal is 30 days. The judgment herein was delivered on 27th February 2025, and the present application as well as the Memorandum of Appeal were filed on 28th May 2025. While the Respondent argued that the delay equated to a three-month delay, the computation is inaccurate. For purposes of computing delay, time starts to run upon the lapse of the thirty-day window. In this case, the thirty days lapsed on 28th March 2025 and since the Application was filed on 28th May 2025, the delay is two months. All in all, the Memorandum of Appeal was filed out of time and without the leave of this Court. It is now through the application that the Applicant seeks to regularize the appeal. 19.The manner in which Courts are to be moved in instances where parties seek to lodge appeals out of time was well settled by the Supreme Court in County Executive of Kisumu v County Government of Kisumu & 8 others (Civil Application 3 of 2016) [2017] KESC 16 (KLR) (Civ) (12 April 2017) (Ruling). The Apex Court rendered itself in paragraph 35 thus: -(35)We are in total agreement with the respondent that an appeal filed in this Court out of time without leave of this Court is irregular and this Court will not invoke such ‘novel’ principles as urged by applicant so as to validate that petition and deem it as properly filed. We buttress this Court’s position in Nicholas Salat when this Court stated thus:…In his submissions, counsel for the applicant acknowledged having already filed his appeal. He now prays for extension of time and urges that once so granted, the Petition of appeal already filed be deemed to have been duly filed.What we hear the applicant telling the Court is that he is acknowledging having filed a ‘document’ he calls ‘an appeal’ out of time without leave of the Court. Pursuant to rule 33(1) of the Court’s Rules, it is mandatory that an appeal can only be filed within 30 days of filing the notice of appeal. Under rule 53 of the Court’s Rules, this Court can indeed extend time. However, it cannot be gainsaid that where the law provides for the time within which something ought to be done, if that time lapses, one need to first seek extension of that time before he can proceed to do that which the law requires.By filing an appeal out of time before seeking extension of time, and subsequently seeking the Court to extend time and recognize such ‘an appeal’, is tantamount to moving the Court to remedy an illegality. This, the Court cannot do.To file an appeal out of time and seek the Court to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the Court. Such a filing renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this Court will not accept a document filed out of time without leave of the Court. It is unfortunate that Petition No. 10 of 2014 has been accorded a reference number in this Court’s Registry. This is irregular as that document is unknown in law and the same should be struck out. Where one intends to file an appeal out of time and seeks extension of time, the least (sic) he can do is to annex the draft intended petition of appeal for the Court’s perusal when making his application for extension of time; and not to file an appeal and seek to legalize it. Petition No. 10 of 2014 having been filed out of time and without leave (an order of this Court extending time), is expunged from the Court’s Record.” 20.The decisions of the Supreme Court are binding upon all other Courts save the Supreme Court itself. That is the plain textual reading of Article 163[7] of the Constituion. In that case, therefore, this Court has no option, but to apply the law as established by the Apex Court. As such, the jurisdiction of this Court was improperly invoked and the Court lacks jurisdiction to entertain this matter further. The Court downs its tools. 21.On the basis of the foregoing finding, the rest of the issue fall by the wayside since this Court lacks the competency to entertain it. Disposition: 22.Consequently, the following final orders hereby issue: -(a)The High Court Civil Appeal No. E015 of 2025 is hereby struck out.(b)For clarity, the Notice of Motion dated 28th May 2025 hereby stand struck out as well.(c)Any interim orders in force are hereby discharged and/or set aside accordingly.(d)Boniface Karanja, ‘the Appellant’ shall bear the costs of the ‘appeal’ and the application.(e)This file is hereby marked as Closed. Orders accordingly DELIVERED, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF SEPTEMBER, 2026.A. C. MRIMAJUDGERuling virtually delivered in the presence of:Mrs. Kimani, Learned Counsel for the Applicant/Appellant.Mr. Ray Aboge, Learned Counsel for the Respondent.Michael/Amina – Court Assistants.