https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1479

Hemed v Kenya Orient Insurance Company Ltd (Civil Appeal E010 of 2024) [2026] KECA 1479 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1479 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E010 of 2024 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 24, 2026 Between Farida Hemed Appellant and Kenya Orient Insurance Company Ltd Respondent (Being an appeal from the Judgment and Decree of the High Court of Kenya at Mombasa (Kizito Magare, J.) delivered on 6th November 2023 in Appeal No. E009 of 2023) Judgment 1.This is a second appeal arising from the judgment of the High Court of Kenya at Mombasa (Kizito Magare, J.) delivered on 6th November 2023 in Civil Appeal No. E009 of 2023, which was preceded by what may be viewed as a needlessly litigious line of time- consuming and costly interlocutory applications culminating in the instant appeal. 2.The genesis of the appeal is the suit filed by the appellant (Farida Hemed) against Mast Investment Company Limited (the company) and one Shabal Sameh Ali in Mombasa RMCCC No. 2291 of 2009 seeking damages for injuries allegedly sustained in a road traffic accident involving the company’s vehicle Registration No. KAR 932R (the motor vehicle) driven by Shabal Sameh Ali, and a bicycle on which the appellant was travelling. In determination of the appellant’s suit, the trial court entered judgment in her favour in the total sum of Kshs. 202,345. 3.In a bid to enforce the decree, the appellant filed a declaratory suit against the respondent (Kenya Orient Insurance Company Limited) in Mombasa RMCCC No. 2868 of 2010 seeking a declaratory judgment against the respondent, which had allegedly insured the company’s motor vehicle. In its defence, the respondent denied the appellant’s claim. 4.Subsequently, the appellant filed an application seeking orders to strike out the respondent’s defence on the grounds that it was an abuse of court process. In a ruling dated 27th May 2011, the learned Magistrate (Hon. J. Gandani, SPM) struck out the respondent’s defence and entered judgment in favour of the appellant. 5.Dissatisfied with the trial court’s decision, the respondent moved to the High Court on appeal in Civil Appeal No. 118 of 2011. In its judgment dated 27th November 2014, the High Court (Mary Kasango, J.) found that the respondent’s defence raised triable issues, set aside the impugned ruling and remitted the suit to the trial court for hearing and determination on its merits. In addition, she awarded the respondent costs of the appeal, which were taxed at Kshs. 144,693. 6.The suit was heard de novo and culminated in the judgment dated 20th August 2021 in the appellant’s favour for Kshs. 202,354 plus costs and interest. By a letter dated 23rd August 2021, counsel for the appellant notified counsel for the respondent of the judgment and decree. They computed interest on the decretal amount at Kshs. 265,072 and the costs of the suit at Kshs. 80,005, bringing the decretal sum to a grand total of Kshs. 547,422. 7.In reply vide a letter dated 25th August 2021, counsel for the respondent contended that the decretal sum should be less the taxed costs of the previous appeal, thereby reducing the grand total of the decretal amount to Kshs. 213,181.12. 8.On 31st August 2021, the respondent filed an appeal against the lower court’s judgment dated 20th August 2021 in High Court Civil Appeal No. 124 of 2021. The grounds on which its appeal was founded were that the learned magistrate erred in law and fact in holding that the appellant had proved her case on a balance of probabilities; and in holding that she had established service of the statutory notice under sections 5 and 10 of the Insurance (Motor Vehicle Third Party Risks) Act, Cap. 405. 9.In addition to the appeal aforesaid, the respondent filed a Notice of Motion in the trial court dated 9th September 2021 supported by an affidavit sworn on even date by Caroline Simiyu, its Coast Regional Manager, essentially deposing to the grounds on which the Motion was filed. In its Motion, the respondent sought orders to stay execution of the judgment and decree pending hearing and determination of its appeal. In its application, the respondent contended that its appeal was arguable; that execution would cause irreparable loss; that the appellant could not refund the substantial decretal sum in the event that the appeal succeeded; and that execution would cripple its business which was already weakened by the Covid-19 pandemic. Further, the respondent offered to provide a banker’s guarantee as security. 10.In opposition to the respondent’s Motion, the appellant filed her replying affidavit sworn on 22nd September 2021 deponing that the respondent’s Motion was an abuse of the court process; that it only lodged an appeal after failing to agree on the decretal sum; that she was financially capable of refunding the decretal amount as she was operating a school where she earned Kshs. 100,000 monthly; that the appellant had not demonstrated genuine difficulty in paying the amount decreed; and that the respondent had not met the requirements for the stay orders sought. 11.Soon thereafter, the respondent filed a further affidavit sworn by Caroline Simiyu on 27th September 2021 deponing that the appellant had failed to pay costs of the previous appeal as ordered by the High Court in 2015, making it unlikely that she was able to refund the decretal sum if its appeal succeeded; and that the appellant’s evidence of registration of her school was insufficient proof of income or ability to repay the decretal sum. The deponent further reiterated the respondent’s right of appeal and its willingness to secure the decretal amount through a banker’s guarantee. 12.In its ruling dated 10th November 2022, the Chief Magistrate’s Court (Hon. J. B. Kalo, CM) concluded that the appellant had nothing to show that she was in a position to refund the substantial decretal amount. According to the learned Magistrate, the respondent’s offer of security was sufficient to merit the stay orders sought. Accordingly, the trial court granted the respondent stay pending appeal on condition that it deposited the decretal sum in court within 30 days from the date of the ruling, failing which the stay order would automatically lapse, and the appellant would be at liberty to execute. 13.Subsequently, the respondent filed a Notice of Motion dated 23rd January 2023 seeking orders to extend time for compliance with the security conditions on which stay orders were granted vide the ruling dated 10th November 2022. Its Motion was supported by an affidavit sworn on even date by Sylvester Kivuva (its Coast Regional Manager) deposing to the grounds on which it was founded, namely: that the ruling dated 10th November 2022 went to the spam folder of the respondent’s counsel, who did not discover this until 3rd December 2022; that the respondent’s counsel then wrote to the respondent on the same day offering to deposit the decretal amount albeit belatedly since time for compliance had lapsed; that, on 9th December 2022, the respondent wrote back to its counsel indicating that they could not process the cheque for deposit of the decretal amount as its file had been misplaced, and that they required pleadings to reconstruct their file and process payment; that the respondent’s counsel supplied the pleadings on 13th December 2022 along with other documents that enabled the respondent to trace its records; that, on 15th December 2022, the respondent’s counsel served the respondent with the Joint Interest Account Opening forms and delivered a cheque of Kshs. 547,222 to counsel for the appellant, who instantly notified the appellant of that development; and that, vide a letter dated 16th December 2022, the appellant’s counsel declined to complete the account opening forms as the 30-day compliance period had lapsed. 14.The respondent further averred that the delay in compliance with the orders was not intentional, malicious or done in contempt of the court’s orders; that it was in the interest of justice that the timeline be extended/enlarged to facilitate compliance; that the respondent was apprehensive that the appellant would proceed with execution at any time, which would erode the substratum of the appeal; that the orders sought would not occasion any prejudice to the appellant as her counsel was still in possession of the cheque awaiting banking to secure the entire decretal amount pending appeal; that the delay in sending the account opening documents was not inordinate as the compliance period lapsed on Saturday 10th December 2022 but, considering that the 10th and 11th were weekends and Monday 12th December was a public holiday, the last day for compliance was 14th December 2022; and that the application had not been brought with unreasonable or undue delay. 15.In response, the appellant filed her replying affidavit sworn and filed on 26th January 2023 deponing that the respondent had not demonstrated any special circumstances warranting the court’s interference with its ruling of 10th November 2022; that there was no averment from either counsel for the respondent or their secretary deponing to the misplacement of the email in the spam folder as claimed by the respondent; that, even after discovery of the ruling, the respondent still had 7 days to remit the money to court as directed; that the respondent’s annexures showed that the respondent was promptly informed of the ruling on 15th November 2022 and a copy thereof forwarded to no fewer than 9 of the respondent’s officials by its advocates; that it was therefore untrue that the email forwarding the ruling was mislaid in the respondent’s advocates’ spam folder until 3rd December 2022; that, in any event, the alleged letter of 3rd December 2022 had not been exhibited; that the respondent therefore had 25 days to effect payment and did not explain why it failed to do so within the remaining days; and that the respondent ought to have keenly followed the proceedings at that sensitive stage to avoid any lapses, but did not. 16.The respondent further deponed that there was no connection between possession of copies of pleadings and processing payments as ordered by the court; that the respondent’s advocates’ email of 15th November 2022 constituted adequate information to process payment; that, in any event, there was no indication that the deposit was ready within the 30 days of the court’s ruling; that the respondent’s actions were deliberate, if not indolent; that there was no requirement for a bank account opening or for the appellant’s involvement in signing forms; that the court’s ruling of 10th November 2022 had carefully balanced the interest of each party; and that, should the application be allowed, the appellant stood to suffer prejudice. 17.In its ruling dated 26th January 2023, the learned Magistrate (J. B. Kalo, CM) considered the respondent’s application, found that the extension orders sought were merited, and granted extension of time for compliance with the trial court’s orders within 14 days from the date of the ruling. 18.Aggrieved by the learned Magistrate’s decision, the appellant filed High Court Civil Appeal No. E009 of 2023 on the grounds that the learned magistrate erred in law and fact: by allowing the respondent’s application, and in granting extension of time to comply with the court’s ruling and orders of 10th November 2022; in disregarding or misapplying the principles of enlargement and/or extension of time; and in ignoring the reply and submissions of the appellant to the application in issue. 19.In its judgment dated 6th November 2023, the High Court (Kizito Magare, J.) held that the appeal was fundamentally flawed. The learned Judge reasoned that an appeal impugning the exercise of judicial discretion, such as an order extending time, was not sustainable absent a clear demonstration of misdirection or resulting injustice. The court further observed that the appeal arose from the grant of stay orders pending appeal, which, in its view, could not found a standalone appeal. The learned Judge stated that the proper recourse lay in moving the appellate court to set aside the stay orders. In the result, the court concluded that the impugned orders were not appealable, and accordingly dismissed the appeal with costs to the respondent, which costs were assessed at Kshs. 45,000, payable within thirty days, in default of which execution was to issue. 20.Still dissatisfied, the appellant has filed the instant appeal against the judgment vide a Memorandum of Appeal dated 6th December 2023 on the following grounds:“1.That the Learned Judge erred in law and in fact in failing to consider the merits of the issues raised in the grounds set forth in the memorandum of appeal dated 26th January, 2023.2.That the Learned Judge erred in law and in fact in failing to address himself to the learned Magistrate's exercise of judicial discretion in his ruling dated 26th January, 2023, which was the subject of the appeal.3.That the Learned Judge erred in law and in fact in failing [to] hold that based on the facts presented, the Magistrate's exercise of discretion in the ruling and order of the court dated 26th January, 2023 was erroneous.4.That the Learned Court erred in law and in fact in dismissing the Appellant’s appeal.5.That the court erred in law and in fact in awarding costs to the Respondent against the Appellant.” 21.On the grounds aforesaid, the appellant prays that the impugned judgment be set aside and substituted for an order allowing the appellant’s appeal with costs; and that the costs of this appeal be borne by the respondent. 22.In response, the respondent filed a Notice of Objection on the grounds that this Court lacks jurisdiction to entertain the appeal, which is in contravention of rule 89(2) of the Court of Appeal Rules with regard to the mandatory contents of a record of appeal. 23.To our mind, three main issues commend themselves for our determination, namely: (i) Whether an appeal lies as of right to this Court from the impugned judgment of the High Court, on 2nd appeal, against the subordinate court’s ruling and order extending time for the respondent to comply with the order to deposit security; (ii) if the answer to (i) is in the affirmative, whether the learned Judge was at fault in dismissing the appellant’s appeal with costs to the respondent; and (iii) whether the record of the instant appeal is in compliance with the mandatory provisions of rule 89(2) of the Court of Appeal Rules, 2022. 24.In support of the appeal, learned counsel for the appellant, M/s. Kanyi J. & Company, filed written submissions dated 14th May 2025 while, in rebuttal, learned counsel for the respondent, M/s. Jengo Associates, filed written submissions and a list of authorities dated 3rd June 2025. Learned counsel made oral highlights of their respective submissions when the appeal came up for hearing on the Court’s virtual platform. 25.On the 1st issue as to whether an appeal lies to this Court from a judgment of the High Court on 1st appeal over and concerning the order and directions of the trial court extending time pursuant to Order 50 rule 6 of the Civil Procedure Rules, the learned judge expressed the view that the appeal before him was, in character, a most unusual one, and that it fell to be dismissed for three cardinal reasons. The first, the Learned Judge observed, was that the appeal was directed against the exercise of a judicial discretion. It was not sufficient, in that regard, that the court might have granted different orders on the same facts. The second was that an appeal from the grant or refusal of a stay application does not constitute an independent ground of appeal; and that such a matter, the Learned Judge reasoned, is properly ventilated in the court from which the appeal lies. The third was that the appeal was, in any event, devoid of merit. 26.Taking issue with the learned Judge’s decision, counsel for the appellant submitted at length that the learned Judge appears to have taken the view that the exercise of judicial discretion is beyond question, and that, since the appeal sought to challenge such discretion, this alone was, in its opinion, sufficient ground for dismissal of the appeal. According to counsel, this is not true because courts have on many occasions held that a court’s exercise of discretion can be interfered with where it is shown to have been exercised arbitrarily, capriciously, or on the basis of a misapprehension of the law or the facts. 27.Counsel cited the cases of Kridha Limited v Peter Salai Kituri [2020] eKLR; and Mbogo and Another v Shah [1968] EA 93 for the proposition that this Court is only entitled to interfere with a discretionary decision of the Judge appealed from if the Judge misdirected himself in law; misapprehended the facts; took account of considerations of which he should not have taken account; failed to take account of considerations of which he should have taken account; and/or his decision, albeit a discretionary one, is plainly wrong. 28.Counsel also cited the case of Bouchard International (Services) Ltd v M’mwereria [1987] KLR 193 for the proposition that the discretion is intended so 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; and the case of Kenya Women Microfinance Ltd v Martha Wangari Kamau [2021] KEHC 3637 (KLR) for the proposition that an appellate court should pay some deference to decisions made in exercise of discretion, but should not follow them slavishly; and that, where there is a basis for upsetting such decisions, the court should do so if the findings in question are based on no evidence, or a misapprehension of the evidence; or consideration of irrelevant matters, or failure to consider what ought to have been considered. 29.Counsel contended that the court fundamentally mischaracterised the nature of the impugned order. According to counsel, the order appealed from was not an order granting stay pending appeal. Rather, it was an order extending time for the respondent to comply with conditions imposed by the court in its earlier ruling of 10th November 2022. The application before the trial court was therefore made and considered under Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules, which empower the court, at its discretion, to enlarge the time required to do any act or take any step under the Rules, even where such time has already expired. 30.Counsel further submitted that, in any event, Order 43 Rule 1(2) and Section 75 of the Civil Procedure Act empower the court to grant leave where such is required. In the present case, the trial court expressly granted the appellant leave to appeal against the order of 26th January, 2023, thus curing any doubt as to the competence of the appeal. According to counsel, an appeal from an order made under Order 50 Rule 6 lies as of right under Order 43 Rule 1(1), which provides that appeals shall lie from the orders listed therein, including orders made under Order 50 (6) (enlargement of time). In addition, counsel urged that the court erroneously proceeded on the footing that the entire appeal emanated from a ruling on an application for stay pending appeal. 31.As counsel pointed out, the third and final reason advanced by the court in dismissing the appeal was that it lacked merit. However, counsel contended, this conclusion was not substantiated or explained in the judgment. The merits were not considered. The appeal raised substantive issues that merited judicial consideration. Counsel further contended that the appellant’s complaint was that the respondent had approached the court with untruths in order to obtain the extension of time to comply with its orders; that further, the court failed to provide reasons for its decision, leaving it unclear whether these untruths were considered or addressed at all; and that, as a result, the delay in complying with the court's conditions remained unexplained. The effect, therefore, was that the court exercised its discretion in favour of a party who was indolent and had deliberately abused the court process. 32.Counsel went on to submit that one of the key principles in the exercise of judicial discretion is that it should not benefit the indolent or a party who has deliberately sought, whether through evasion or other means, to obstruct or delay the course of justice. Counsel cited the cases of Gandhi Brothers v H. K. Njage T/A H. K. Enterprises Nairobi HCCC No. 1330 of 2001 – Milimani [UR] for the proposition that discretion should not be exercised to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice; Teacher Service Commission v Ex-parte Patrick M Njuguna [2013] KEHC 680 (KLR) for the proposition that discretion must be exercised upon reason and not capriciously or based on sympathy alone; and that justice must look both ways, as the rules of procedure are meant to regulate the administration of justice and not meant to assist the indolent; and Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 701 (KLR) for the proposition that a plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour because there has to be valid and clear reasons upon which discretion can be favourably exercised. 33.Closely tied to her right to be heard, which the appellant alleges was violated, is the obligation of a court to provide reasons for its decisions. According to counsel, the trial court was duty-bound to analyse and record the principles and factors it considered in granting the extension of time; that the absence of such reasoning gives the impression that the decision was reached arbitrarily, without a judicious application of mind; that failure to consider the necessary factors when exercising judicial discretion entitles an appellate judge to intervene in the decision-making process; and that, without reasons, this Court is left unable to assess how and why the trial court reached its decision. 34.Counsel cited the case of Kikenni Properties Limited & another v Vipingo Ridge Limited [2021] KEHC 489 (KLR) for the proposition that a decision is unfair if the decision-maker deprives himself or herself of hearing the views of the person who will be affected by the decision; as well as the cases of Pithon Waweru Maina v Thuka Mugiria [1983] KECA 117 (KLR); and Kridha Limited v Peter Salai Kituri (supra) to support the submission that failure to consider the necessary factors when exercising judicial discretion entitles an appellate judge to intervene in the decision- making process. Counsel urged us to allow the appeal. 35.In rebuttal, counsel for the respondent submitted that the impugned decision was understood to have entailed the exercise of judicial discretion; that it was acknowledged at the outset that, in principle, the learned magistrate erred in allowing the application for extension of time in a summary manner and without assigning reasons therefor; and that it was further conceded that the learned Judge misapprehended the nature of the application that had been placed before the magistrate and which, in substance, was one brought under section 95 of the Civil Procedure Act and Order 50 rule 6 of the Civil Procedure Rules. 36.In those circumstances, it was observed that, although this Court retained the option of remitting the application to the magistrate for proper consideration, such a course would serve no practical purpose. This was said to be so given that the appeal pursuant to which security had been deposited had long since been concluded, and that a second appeal, being Mombasa Civil Appeal No. E020 of 2024, was presently pending before this Court for determination. The Court was therefore urged to assume the task of considering the applicable principles governing extension of time, it being contended that, even upon such consideration, the decision of the magistrate would ultimately be sustained. 37.In that regard, reliance was placed on Njoroge v Kimani [2022] KECA 1188 (KLR) for the applicable principles in determining applications for extension of time. It was submitted that the delay in question was not inordinate, being a delay of only two days. As to the explanation for the delay, it was contended that the same arose from a breakdown in communication between the respondent and its advocates, and was attributable to an inadvertent mistake on the part of counsel. 38.The Court was further referred to Belinda Murai & 9 others v Amos Wainaina [1979] KECA 25 (KLR) for the proposition that, in appropriate circumstances, mistake of counsel ought not to be visited upon an innocent litigant. It was also submitted that no prejudice was occasioned to the appellant by the two-day delay in furnishing security, particularly as the requisite sum had already been deposited by the time the magistrate rendered the impugned decision. It was contended that the overriding objective favoured the enlargement of time in such circumstances, and that the respondent’s conduct did not evince any intention to overreach or delay the course of justice. 39.Further reliance was placed on Philip Keipto Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR) for the principle that the mere fact of error or default does not inexorably warrant the denial of a hearing on the merits, and that, absent fraud or an intention to overreach, such errors may properly be remedied, including by an award of costs. 40.It is instructive that the application giving rise to the decision appealed from in the High Court was brought under section 95 of the Civil Procedure Act and Order 50 rule 6 of the Civil Procedure Rules, whose provisions grant courts the discretion to enlarge time fixed for doing any act or taking any proceedings, even after the expiry of the period originally fixed or granted. In effect, the impugned ruling and orders culminating in the judgment of the High Court, the subject of the instant appeal, had nothing to do with any application under Order 42 rule 6, which empowers the High Court to grant a temporary injunction or stay of execution pending appeal. 41.The pertinent question is whether an appeal lies as of right against a decision made in determination of an application pursuant to section 95 of the Civil Procedure Act and Order 50 rule 6 of the Civil Procedure Rules as was the case here. As rightly submitted by counsel for the respondent, it is indubitable that Order 43 rule 1 includes Order 50 rule 6 among the orders from which an appeal lies as of right. It is apparent that the learned Judge mischaracterised the application in issue as one brought under Order 42 rule 6 and, consequently, misdirected himself on the principles to be taken into account when considering and determining the application. Accordingly, we form the respectful view that the learned Judge was at fault in holding that the appellant’s appeal was “unsustainable and unmerited” while the real issue was whether an appeal lay, either as of right or with leave, against the impugned ruling and order extending time to comply with the trial court’s orders. We find that an appeal lies as of right against any order extending time pursuant to Order 50 rule 6 under and by virtue of Order 43 rule 1 of the Civil Procedure Rules, and that settles the 1st issue before us. 42.In view of the foregoing, we reach the inescapable conclusion that the appellant’s application was competent, and that the issue that fell to be determined on appeal to the High Court ought to have been whether the learned magistrate correctly exercised his discretion in enlarging the time for compliance with the orders of the trial court dated 10th November 2022 and, by extension in accord with the 2nd issue before us, whether the learned Judge was at fault in dismissing the respondent’s appeal albeit for the wrong reasons. 43.Turning to the 2nd issue before us, we take to mind this Court’s decision in United India Insurance Co and another v East Africa Underwriters and another [1976–1985] 1 EA 579 where Madan, JA. (as he then was) elucidated the instances when this Court can interfere with the exercise of discretion by a court below thus:“The Court of Appeal will not interfere with a discretionary decision of the Judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the Judge to the various factors in the case. The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the Judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.” 44.It is not lost on us that the Judge misdirected himself in law by treating the respondent’s application in the trial court seeking enlargement of time pursuant to Order 50 rule 6 of the Civil Procedure Rules as one for stay of execution pending appeal pursuant to Order 42 rule 6. To this extent, the learned Judge misapprehended the facts; took account of considerations of which he should not have taken account; failed to take account of considerations of which he should have taken account; and, consequently, reached the impugned decision for the wrong reasons. In the circumstances, it would be remiss of us not to pronounce ourselves conclusively and determine whether the appeal in the court below had merit notwithstanding the learned Judge’s misperception of the nature of the application from which the impugned ruling and orders arose. We do so mindful of Article 159(2) (d) so as lend expedition and cost-effectiveness to what proves to have been a long- drawn series of interlocutory applications that add little or no value to the parties’ substantive claims. 45.Turning to the factors to be considered in determination of an application for extension of time under Order 50 rule 6 of the Civil Procedure Rules, we take to mind the decision in Karan v Ochieng & 2 others [2018] KESC 4 (KLR) where the Supreme Court summarised the guiding principles to be taken into account when determining whether or not to grant extension of time as follows:“75.In the Nicholas Salat case, we furthermore categorically stated that extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Consequently, extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it. To enjoy it a party has to demonstrate that he has a bona fide cause of action and time had lapsed, but was constrained to pursue within time that cause, because of some compelling reasons, and the courts of law can only intervene and indulge such a person if established that he was not at fault ….77.In Nicholas Salat case, we clearly laid out the following as the under-lying principles that a court should consider in exercise of such discretion:1.Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;2.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; 46.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;4.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;5.Whether there will be any prejudice suffered by the respondents if the extension is granted;6.Whether the application has been brought without undue delay; and7.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 47.In the present case, it is noteworthy that the magistrate did not set out the basis for his decision to grant extension of time for compliance with the orders of 10th November 2022. This procedural infraction left no room for the parties or the superior court on appeal to scrutinise the reasons for the learned Magistrate’s discretionary decision. To our mind, that requirement cannot be taken for granted. 48.In Philip Mururi Ndaruga v Gatemu Housing Co-operative Society Ltd [2016] KEHC 3136 (KLR), Mativo, J. (as he then was) persuasively observed that:I find it necessary to point out that the ruling in question is too brief and I find it difficult to extract the reasons as to why or how the court arrived at the impugned decision or why the [court] could not exercise its discretion in favour of the applicant. It is a fundamental requirement of common law that reasons for judgment or ruling be given by the judicial officer….…. Plainly, there are a number of justifications for requiring the provision of reasons. In the case of an appeal, reasons enable an appellate court to be satisfied that the decision- maker took into account all matters that he or she was required to consider, and did not have regard to extraneous material. Reasons also enable an appellate court to determine whether any other form of jurisdictional error has been demonstrated.Reasons enable litigants to see whether any appealable or reviewable error had been committed, thereby informing the decision whether to appeal, or let the matter lie ….” 49.As to whether the application for extension of time was nonetheless merited, we are mindful of the fact that the respondent was required to deposit the decretal sum in court within 30 days from the date of the order, that is, by 10th December 2022. The respondent availed the decretal amount through a cheque on 15th December 2022, 5 days later. The application for extension of time was filed on 23rd January 2023, 7 days after the appellant’s advocates’ letter of 16th December 2022 declining to sign account opening forms on the ground that the compliance period had lapsed. In the circumstances, the application was brought without undue delay. The only issue of real concern is whether the 5 days’ delay was sufficiently explained, and whether the appellant was prejudiced by the impugned extension of time in respect of which the learned Judge missed the point and proceeded to determine the appeal before him on divergent grounds. 50.The respondent’s reason for the delay in compliance with the trial court’s orders was that the ruling dated 10th November 2022 inadvertently went to the spam folder of its advocates email address; and that this was only discovered on 3rd December 2022 and brought to the respondent’s attention, after which it was unable to deposit the decretal sum within the time granted by the court as it required pleadings and other documentation to reconstruct their allegedly misplaced file and process payment. While the appellant posits that the reason advanced by the respondent are implausible, and that there was no evidence annexed to the affidavit in support of the motion for extension of time to demonstrate that the respondent’s advocates discovered the ruling in their email’s spam folder on 3rd December 2022, we fail to appreciate what the parties would have preferred – as between a trial, on evidence, to determine the actual reason for the 5 days’ delay, or peaceably settle for the trial court’s finding on a balance of probabilities whether it was persuaded by the reasons advanced in the respondent’s Motion. 51.To our mind, the protracted contestations in the preceding interlocutory applications, appeals and submissions, only served to deplete the parties’ treasury chests while the substantive issues remained undetermined. Accordingly, we are not persuaded that the reasons advanced for the 5 days delay in complying with the orders of the trial court were insufficient or implausible. We also fail to appreciate what was expected of the trial court to find beyond what appears to have been administrative infractions in the face of the respondent’s preparedness to deposit security as ordered. 52.Having so mused, we turn to the question as to whether the appellant stood to suffer any prejudice by the conditional orders granted for enlargement of time. To our mind, the efforts made by the respondent to furnish security albeit belatedly cannot be wished away. In view of the foregoing, we find that the respondent’s application for extension of time had merit, and that the appellant’s appeal in the superior court challenging the ruling and order to extend time to comply with the conditional order for stay of execution pending appeal had no merit. 53.While we find, as did the learned Judge albeit for different reasons, that the 1st appeal fails, we nonetheless depart from his decision to not only award, but also assess, costs of the appeal in the sum of Kshs. 45,000 in the respondent’s favour. We hasten to observe that, while the respondent was entitled to costs of the appeal in the court below, assessment thereof falls within the exclusive jurisdiction of the Taxing Master. 54.The question of whether the learned judge was competent to assess costs is one that admits of little difficulty. The law on the point is settled by clear and persuasive authority. In Donholm Rahisi Stores (suing as a firm) v East Africa Portland Cement Limited [2005] KEHC 349 (KLR), Waweru, J. stated the position in terms that have since been consistently applied. The Learned Judge held that taxation of costs, whether as between party and party or as between advocate and client, constitutes a special jurisdiction reserved exclusively to the Taxing Officer by the Advocates (Remuneration) Order, and that a court will not be drawn into the arena of taxation except by way of a reference from a decision on taxation brought under Rule 11 of that Order. The implication of that holding is unambiguous: the quantification of costs is not a function of the Judge but of the Taxing Officer, and the court's proper role is supervisory, not primary. 55.That supervisory role is itself carefully circumscribed. In Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] KECA 325 (KLR), a decision of this Court, it was held that on a reference from the Taxing Officer, a Judge will not ordinarily interfere with the exercise of the Taxing Officer's discretion unless an error of principle is established. The Court further held that, where such an error is found, the general and proper practice is to remit the question of quantum back to the Taxing Officer for fresh determination, the Judge retaining only a residual discretion to deal with the matter himself where the justice of the case strictly so requires. 56.It follows from the afore-cited authorities, read together, that a Judge who proceeds to assess and quantify costs at first instance, without a prior taxation by the Taxing Officer and absent any reference, has not merely adopted an irregular procedure, but has also assumed a jurisdiction that the law reposes elsewhere and has, in that respect, overreached. The assessment of costs made by the learned judge cannot, in the circumstances, stand, and the matter must be remitted to the Taxing Master for taxation in accordance with the prescribed Rules of procedure. 57.The 3rd and last issue as to whether the record of appeal is incomplete and in contravention of rule 89(2) of this Court’s Rules was raised by the respondent in its Grounds of Notice of Objection. In this regard, counsel for the respondent submitted that the appeal was incompetent and incurably defective. In that regard, it was pointed out that the record of appeal omitted essential primary documents, including the order and/or decree of both the magistrate’s court and of the High Court from which the appeal lay. Further, it was observed that the record did not contain the originating processes in the subordinate court, namely the summons to enter appearance and the plaint. 58.Counsel further submitted that the record was also devoid of the lower court’s judgment, decree, and plaint, with the consequence that the Court’s appellate jurisdiction under rule 89(2) had not been properly invoked. In those premises, it was urged that the Court lacked jurisdiction to entertain the appeal and ought not to proceed further; and that, on that ground alone, the appeal was liable to fail. 59.In support of that position, reliance was placed on Bwana v Bonaya & 2 others [2015] KESC 8 (KLR), for the proposition that rule 87 (now rule 89) prescribes the mandatory contents of a record of appeal necessary to render an appeal competent before the Court of Appeal. It was emphasised that a record of appeal constitutes the complete compendium of documents—including pleadings, submissions, and the judgment of the lower court—without which the appellate court would be unable to determine the issues in controversy. Accordingly, it was submitted that omission of any part of that essential record renders the appeal incompetent and defective for non-compliance with the law, thereby depriving the Court of jurisdiction to adjudicate upon the factual and legal issues raised. 60.In brief response, counsel for the appellant reiterated that the record of appeal was complete, and that the appeal was competent. 61.Rule 89 of this Court’s Rules prescribes the contents of a record of appeal as follows:89.Contents of record of appeal1.For the purposes of an appeal from a decision of a superior court in exercise of its original jurisdiction, the record of appeal shall, subject to subrule (3), contain copies of the following documents—a.an index of the documents in the record with the numbers of the pages at which they appear;b.a statement showing the address for service of the appellant and the address for service furnished by the respondent and, as regards any respondent who has not furnished an address for service as required by rule 79, that respondent’s last known address and proof of service on him or her of the notice of appeal;c.the pleadings;d.the trial judge's notes of the hearing;e.the transcript of any shorthand notes taken at the trial;f.the affidavits read and documents put in evidence at the hearing or, if such documents are not in the English language, certified translations thereof;g.the judgment or order;h.the certified decree or order;i.the order, if any, giving leave to appeal;j.the notice of appeal; andk.such other documents, if any, as may be necessary for the proper determination of the appeal, including any interlocutory proceedings which may be directly relevant:Provided that the copies referred to in paragraphs (d), (e) and (f) shall exclude copies of any documents or any parts thereof that are not relevant to the matters in controversy on the appeal.2.For the purposes of an appeal from a decision of superior court in exercise of its appellate jurisdiction, the record of appeal shall contain documents relating to the proceedings in the trial court corresponding as nearly as may be to those set out in subrule (1) and the following documents relating to the appeal to the first appellate court—a.the order, if any, giving leave to appeal;b.the memorandum of appeal;c.the record of proceedings; andd.the certified decree or order. 62.In the present case, the documents which the appellant ought to have included in the record of appeal in the first appeal are: the pleadings directly relevant to the decision of the lower court (namely the application for extension of time to comply with the orders of 10th November 2022 and the affidavits and replies thereto); the lower court proceedings; the lower court’s ruling or order; and the notice of appeal. Those documents were included in the record of appeal filed in the High Court and reproduced in the record of the instant appeal before us. 63.In addition to the aforementioned documents, the record of appeal to this Court on second appeal should also comprise of: the memorandum of appeal filed in the High Court; the record of proceedings in the High Court; and the impugned judgment and the certified decree issued by the High Court in determination of the first appeal. Notably, all of these documents are present in the record of appeal dated 6th December 2023, save for the certified decree, which was properly filed in a supplementary record of appeal dated 15th May 2025. 64.In Kenya Ports Authority Pension Scheme & 8 others v Kinyua Muyaa & Co. Advocates [2022] KECA 578 (KLR), Gatembu JA. observed, at the outset, that under the Court of Appeal for East Africa Rules, 1972, there had been no question of introducing a primary document by way of a supplementary record. The current Court of Appeal Rules, the Learned Judge noted, drew no such distinction between primary and secondary documents. Those rules were evidently less rigid and considerably more permissive in their operation: under Rule 88 — now renumbered Rule 90 — an appellant is at liberty, within fifteen days of lodging the record of appeal and without the necessity of seeking leave, to include in a supplementary record any of the documents enumerated under Rule 87(1) and (2) — now Rule 89(1) and (2) — that were omitted from the original record. 65.The Learned Judge further observed that the scheme of the Rules extended a corresponding latitude to a respondent. Under Rule 92(1) — now Rule 94(1) — a respondent who considers the record of appeal to be defective or insufficient for the purposes of his case is entitled to lodge a supplementary record containing copies of such further or additional documents as may be required for the proper determination of the appeal. 66.From those provisions, the Learned Judge drew the conclusion that the omission, in the first instance, of the documents enumerated under Rule 87 — now Rule 89 — from the record of appeal is a curable defect, remediable within the parameters prescribed by Rules 88 and 92(1) — now Rules 90 and 94(1). The Learned Judge expressed the view that the characterisation of the documents in Rule 87 as "primary documents," which had found its way into a number of decisions of the Court rendered after 2010, was in truth a relic of the antecedent rules and had no proper application to the current regime. It was in that light, the Learned Judge held, that the decisions in Salama Beach Hotel Limited & 3 others v Kenyariri & Associates Advocates [2016] KECA 447 (KLR); and Floris Pierro v Giancarlo Falasconi (as Administrator of the Estate of Santuzza Billioti alias Mei Santuzza) [2014] KECA 827 (KLR), in which appeals had been struck out on the ground that the extracted order or decree appealed from, being a primary document within the meaning of Rule 87(1)(h), had to form part and parcel of the record of appeal, fell to be understood and contextualised. 67.The Learned Judge concluded by observing that, during the hearing of the appeal, there had been no suggestion, nor did anything in the conduct of the proceedings convey the impression that counsel had been impeded or constrained in canvassing the issues arising in the appeal by reason of any incompleteness in the record. In those circumstances, the Learned Judge was of the firm view that to strike out the appeal on account of the omission of the documents in question would be a disproportionate response, and one that the justice of the case did not warrant. 68.This Court, in Sacco Societies Regulatory Authority v Biashara Sacco Society Ltd [2013] KECA 83 (KLR), also underscored the role of a respondent dissatisfied with the contents of a record of appeal under this Court’s Rules as follows:“21.As regards the appellant's failure to include in the record of appeal a further affidavit …, that is an omission that is curable under rule 92 [currently rule 94] of this Court. The respondent is at liberty to file a supplementary record of appeal to introduce the same. We cannot strike out a competent appeal because it is alleged that a document that ought to have been in the record of appeal was not included. If that were the case Rule 92 [currently rule 94] would serve no purpose.” 69.We take to mind the fact that the respondent did not plead or demonstrate that the supplementary record of appeal was filed without the requisite leave. Moreover, the respondent was at liberty to introduce the documents that it was of the opinion were indispensable to this appeal through its own supplementary record of appeal. On the other hand, the plaint, summons, defence and judgment of the lower court, which the respondent laments were not included in the record of appeal, are not directly relevant to the decision initially appealed against, and could therefore be omitted as they do not affect this Court’s ability to determine this appeal. Therefore, the record of appeal as put to us cannot be said to be incompetent. 70.Having come this far, it would be remiss of us not to most respectfully observe, albeit obiter, that interlocutory applications and appeals should serve genuine procedural necessity, not tactical obstruction or attrition. We express those sentiments having tediously navigated the winding terrain of Motions and the two appeals filed by the parties in rapid succession at exorbitant cost in time, and money and in vicious combat that had little to deliver while the substantive issues stood by awaiting their turn for determination. 71.We say so with utmost respect for learned counsel and their respective clients’ right to assert their claims and litigate in the best way they know how. Regrettably, many respondents pray for sanctions in costs to deal with the tendency of applicants to make numerous interlocutory applications that are generally of a tactical nature, but which may be of dubious benefit even to the party making the application, or which may not be warranted by the costs involved (See Lord Woolf's 1996 Access to Justice Final Report). 72.For this reason, we hasten to caution against procedural skirmishing overshadowing substantive justice and posit that the courts must not be used as a game where litigants engage in tactical manoeuvres and procedural battles at the expense of the true merits of the case (see In Re Estate of Dominic Kihuri Kibira alias Domeniko Kihuri S/O Kibira alias Kihuri S/O Kibira (Deceased) [2025] KEHC 15062 (KLR); and Agnes Muthoni Nyanjui & 2 Others v Annah Nyambura Kioi & 3 Others [2015] KEHC 1595 (KLR)). 73.Having carefully considered the record of appeal, the grounds on which it was anchored, the respondent’s Notice of Objection to the appeal, the rival submissions of learned counsel, the cited authorities and the law, we find that the appeal succeeds and is hereby allowed with costs to the appellant. Consequently, we hereby order and direct that:a.the Judgment and Decree of the High Court of Kenya at Mombasa (Kizito Magare, J.) delivered on 6th November 2023 be and is hereby set aside; andb.considering that the impugned judgment of the High Court (Magare, J.) was founded on the court’s own misapprehension of both law and facts, the parties do bear their own costs in HCC Appeal No. E009 of 2023. DATED AND DELIVERED AT MOMBASA THIS 24TH DAY OF JULY 2026.A. K. MURGOR…………………………………JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.……………………………………JUDGE OF APPEALG. W. NGENYE-MACHARIA………………………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR