https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12117

 **REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAIROBI** **MISCELLANEOUS COMMERCIAL APPLICATION NO. E792 OF 2026** **BETWEEN** **DI LORENZO LIMITED …………………………………………………… 1ST APPLICANT MICAEL DI LORENZO …………………………………………………… 2ND APPLICANT** **-VERSUS-** **KWON FU WON ……………………………………………………………… RESPONDENT** **RULING** 1. Before me is the Applicants’ Notice of Motion dated 10th July 2026, brought principally under Order 43 Rules 1 and 2, Order 25 Rule 3, Order 50 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, and Sections 27, 75 and 79G of the Civil Procedure Act. 2. The Applicants seek leave to appeal against the Order of the Magistrate’s Court at Nairobi (Hon. Z. C. Kiboss) delivered on 26th May 2026 in Milimani MCCOMMSU No. E365 of 2026, by which the trial court allowed the Respondent’s Notice of Withdrawal of Suit dated 24th April 2026 and marked the suit as withdrawn, without pronouncing itself on the Applicants’ prayer for costs. 3. The Applicants also seek leave to file the intended appeal out of time. The application is supported by the affidavit of the 2nd Applicant and by written and supplementary submissions dated 13th and 27th July 2026 respectively, which I have considered together with the record. 4. The Applicant has demonstrated service as required by the second Order in the Directions issued by this Court on 14th July 2026. The Court is satisfied. 5. Whilst the matter was coming up for mention for directions and noting that the application is not opposed, the Court directed that it would, in the interest of justice, proceed with the pleadings before it. 6. Two questions fall for determination: whether leave to appeal is required and ought to be granted, and whether time should be extended for filing the intended appeal. 7. On the first, an order made in the exercise of the trial court’s discretion under Order 25 Rule 1, touching on costs under Order 25 Rule 3 and Section 27(1) of the Civil Procedure Act, is not among the orders appealable as of right under Order 43 Rule 1. Leave is therefore a jurisdictional prerequisite under Section 75(1) of the Act. That provision permits leave to be sought either from the court that made the order or from the court to which the appeal would lie. 8. The Applicants have explained, and I accept, that the Order was not delivered in open court but retrieved through the CTS after the matter had already been marked closed, leaving no practical opportunity to move the trial court for leave at the point of delivery. In those circumstances it was open to the Applicants to approach this Court directly, and this Court is properly seized of the application. 9. On extension of time, the guiding principles are well settled. As the Supreme Court held in ***Salat v Independent Electoral and Boundaries Commission & 7 Others*** [2014] eKLR, extension of time is not a right but an equitable remedy granted at the court’s discretion to a deserving party who lays a proper basis for it, having regard to the length and reason for the delay, any prejudice to the respondent, and whether the application itself was brought promptly. 10. The Court of Appeal’s approach in ***Leo Sila Mutiso v Rose Hellen Wangari Mwangi***, Civil Application No. Nai 255 of 1997, applied in ***Thuita Mwangi v Kenya Airways Ltd*** [2003] eKLR, directs attention to substantially the same factors: the length of delay, the reason for it, the prospects of success of the intended appeal, and the degree of prejudice to the other side. 11. Applying these to the record, the Applicants lodged a Notice of Appeal within days of the Order, on 5th June 2026, and thereafter pursued the certified proceedings and extracted Order with diligence; the proceedings were supplied on 30th June 2026 and the extracted Order only on 6th July 2026, some 31 days after it was requested. 12. By operation of Section 79G of the Civil Procedure Act, that period taken by the trial court to prepare and supply the Order is excluded in computing the time for appeal. The present application followed on 13th July 2026, within days of receipt. On this record, the delay was neither inordinate nor attributable to any default on the Applicants' part, and the application itself was filed without delay. 13. Turning to arguability and prejudice, the Court of Appeal in ***Fakir Mohamed v Joseph Mugambi & 2 Others*** [2005] eKLR identified the prospects of success of the intended appeal and the prejudice to the respondent as relevant, though not exhaustive, considerations. The intended appeal raises a discrete and arguable point: whether, having allowed withdrawal of the suit, the trial court was obliged to determine the Applicants’ prayer for costs under Order 25 Rule 3 and Section 27(1) of the Civil Procedure Act before marking the matter closed. 14. That is not a frivolous or spent complaint; it goes to a statutory entitlement said to have been left undetermined. As for prejudice, the suit has already been marked as closed, no stay of any proceedings is sought, and any inconvenience the Respondent may suffer from having to meet the appeal is compensable in costs. 15. Weighing the foregoing against the constitutional imperative under Article 159(2)(d) of the Constitution that substantive justice not be defeated by procedural technicality, I am satisfied that the Applicants have demonstrated both the necessity for leave and good and sufficient cause for the delay, and that the intended appeal is arguable and will occasion no prejudice to the Respondent that costs cannot remedy. The application accordingly succeeds. **ORDERS** 1. *The Notice of Motion dated 10th July 2026 is hereby allowed.* 2. *Leave is granted to the Applicants to appeal against the Order of the Magistrate’s Court at Nairobi delivered on 26th May 2026 in Milimani MCCOMMSU No. E365 of 2026.* 3. *Time within which to lodge the intended appeal is extended; the Applicants shall file and serve their Memorandum and Record of Appeal within thirty (30) days from the date of this Ruling.* 4. *Costs of this application shall abide the outcome of the intended appeal.* **DATED AND DELIVERED AT NAIROBI THIS 27TH DAY OF JULY 2026.** **MURUNGA, J**