https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1340

Gibb Africa Ltd v Rentworks East Africa Ltd (Civil Application E708 of 2024) [2026] KECA 1340 (KLR) (6 July 2026) (Ruling) Neutral citation: [2026] KECA 1340 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E708 of 2024 A Ali-Aroni, JA July 6, 2026 Between Gibb Africa Limited Applicant and Rentworks East Africa Limited Respondent (Being an application for extension of time within which to file and serve a notice of appeal from the Judgment of the High Court at Milimani (Ouya, J.) delivered on 18th November 2024 in HCCA No. E122 of 2023) Ruling 1.Before the Court is an application by way of a notice of motion dated 14th December 2024, brought pursuant to sections 3A and 3B of the Appellate Jurisdiction Act, and rule 4 of the Court of Appeal Rules, 2022 (‘the Rules’), seeking an extension of time to file and serve the notice of appeal. 2.The application is predicated on the grounds on the face of the application and the supporting affidavit of Lucy Gathoni Kibe, the applicant’s finance manager stating that the judgment was delivered on 18th November 2024 in favor of the respondent; the applicant’s advocate shared a copy of the judgment with the CEO and herself on 20th November 2024 and sought instructions on whether they wanted to appeal against the said decision; the delay in issuing the instructions to their counsel and subsequent failure to file and serve a notice of appeal on time was occasioned by the unavailability of the Chief Executive Officer of the applicant, who is the only person mandated to issue instructions; and who availed instructions to appeal against the decision on 14th December 2024; the draft memorandum of appeal demonstrate that the applicant has high chances of success; it is in the interest of justice that leave to file the appeal out of time be granted; there will be no irreparable damage occasioned to the respondent if the orders sought are granted. 3.The respondent on its part filed a replying affidavit in response to the application sworn on 1st July 2026 by Sarah Nyamache, the Finance Manager of the respondent indicating that this would be a second appeal which emanates from the judgment entered on 13th February 2023 by the trial magistrate’s, Hon. Kagoni in the respondents favour; upon appeal to the High Court, judgment was delivered by Ouya J. on 18th November, 2024 in the presence of both parties; despite this, the applicant has to this day not filed its notice of appeal or even requested for proceedings; there is nothing barring an advocate from filing a notice of appeal as they await formal instructions to file an appeal; that when judgment was delivered on 18th November 2024, the applicant's counsel sought for stay of execution pending appeal but purports not to have had instructions to file the appeal; the intended appeal before this Court is merely an afterthought; the applicant has not presented a satisfactory explanation for its delay in filing the appeal; litigation must come to an end and the respondent be allowed to enjoy the fruits of its judgment; further the memorandum of appeal is unmerited and as such the intended appeal is not arguable; that if the orders sought are allowed, the respondent will be greatly prejudiced as the orders will have the effect of prolonging litigation which has spanned for 7 years now; and that it is in the interest of justice and fairness that the present application be dismissed. 4.Learned counsel for the applicant in the submissions dated 3rd July 2026 argues that the guiding principles for granting leave to file an appeal out of time are discussed in Omar Shurie vs. Marian Rashe Yafar [2020] KECA 492 (KLR), Susan Ogutu Oloo & 2 Others vs. Doris Odindo Omolo [2019] KECA 966 (KLR) and Seven L. General Trading Ltd & Another vs. Karau (Miscellaneous Application 42 of 2024) [2024] KEHC 3979 (KLR). That the said principles apply to the circumstances of this case, in that the delay is only twenty-six days, as judgment was delivered on 18th November 2024, while the present application was filed on 14th December 2024. Counsel contends further that such a delay is neither excessive nor unreasonable and an explanation has been given that the delay was occasioned by the applicant's counsel awaiting instructions from the applicant on whether to proceed to appeal. 5.Counsel further submits that the intended appeal raises triable issues with a high likelihood of success. Counsel explains that the High Court dismissed its appeal, thereby upholding an award of Kshs. 3,874,795.30 against it. According to counsel, unless leave is granted, the respondent may proceed with execution and recovery of the decretal sum, thereby occasioning substantial loss and prejudice to the applicant, and that the interests of justice favours allowing it an opportunity to challenge the impugned judgment before this Court. Further, allowing the application will not cause any prejudice to the respondent. 6.Learned counsel for the respondent in the submissions dated 1st July 2026, opposes the application, contending that the application does not satisfy the legal threshold for the exercise of the Court’s discretion. Counsel submits that the discretion under rule 4 of the Rules, must be exercised judicially and only where an applicant demonstrates a satisfactory explanation for the delay, files the application without undue delay, establishes that the intended appeal is arguable, and shows that the respondent will not suffer undue prejudice. In support of these principles, counsel relies on the decisions in Kirera vs. M’Kirera & 2 Others [2023] KECA 2 (KLR) and Vishva Stone Suppliers Company Limited vs. RSR Stone [2006] Limited [2020] KECA 361 (KLR). 7.Counsel argues further that the applicant has failed to provide a satisfactory explanation for its delay in filing the notice of appeal since immediately upon delivery of the judgment, the applicant’s counsel sought a thirty-day stay of execution pending appeal, demonstrating that the applicant was aware of the judgment and contemplated an appeal. Counsel therefore contends that the applicant’s subsequent assertion that its Chief Executive Officer had not instructed counsel to lodge an appeal is not plausible and cannot constitute a satisfactory reason for failing to file a notice of appeal within the fourteen days prescribed under the Rules. 8.Counsel contends further that if the applicant’s counsel anticipated the possibility of an appeal by seeking a stay of execution, they could equally have been protective and filed a notice of appeal to preserve their client’s rights. Furthermore, counsel maintains that litigation belongs to the litigant rather than the advocate, making it the applicant’s responsibility to issue instructions promptly. Consequently, counsel characterises the intended appeal as an afterthought designed solely to frustrate the respondent’s enjoyment of the fruits of its judgment after 7 years prolonged litigation. In addition, counsel contends that the applicant has failed to demonstrate that the intended appeal is arguable and asserts that the proposed memorandum of appeal primarily raises issues of fact, yet a second appeal is confined to matters of law under section 72 of the Civil Procedure Act. 9.I have considered the application, the replying affidavit and the submissions by both parties. The issue for determination is whether to grant an extension of time to file the intended appeal. Rule 4 of the Rules allows this Court to exercise discretion to extend the time limited by the Rules for doing any act authorised or required by the Rules. In County Government of Mombasa vs. Kooba Kenya Limited [2019] KECA 221 (KLR), citing Karny Zaharya & Another vs. Shalom Levi, C. Appl. No. 80 of 2018, the Court stated:“Some of the considerations to be borne in mind while dealing with an application for extension of time include the length of the delay involved, the reason(s) for the delay, the possible prejudice, if any, that each party stands to suffer depending on how the court exercises its discretion; the conduct of the parties; the need to balance the interests of a party who has a decision in his or her favour against the interest of a party who has a constitutionally underpinned right of appeal; the need to protect a party’s opportunity to fully agitate its dispute, against the need to ensure timely resolution of disputes; the public interest issues implicated in the appeal or intended appeal; and whether, prima facie, the intended appeal has chances of success or is a mere frivolity. In taking into account the last consideration, it must be born in mind that it is not the role of a single judge to determine definitively the merits of the intended appeal. That is for the full Court if and when it is ultimately presented with the appeal”. 10.The applicant has explained that counsel sought a stay of the judgment, awaiting instructions on whether to file an appeal or not. This is a normal practice by counsel in contested matters. Further, it is not in dispute that counsel did not lodge a notice of appeal nor seek for certified copies of proceeding, which the counterpart contends ought to have been done. The respondent’s counsel may be right that out of an abundance of caution, this ought to have been done. For the Court, the question now is whether the explanation for the delay is satisfactory, coupled with the length of the delay, likely prejudice, and the conduct of the parties, including whether, prima facie, the appeal is arguable. 11.I find the explanation given for the delay of awaiting instructions from the applicant, which took about three weeks, to be plausible and not inordinate. Counsel also demonstrated diligence by seeking a stay of execution, which is standard practice and cannot be faulted for taking that step. As for the likelihood of the appeal's success, I have looked at the grounds of appeal, and they do not appear frivolous on the face of it. 12.The desire of every successful litigant is to reap the fruits of a successful litigation. On the other hand, the duty of the court in an application such as the one before the Court is to weigh the competing interests of the parties. This is a monetary decree, and any prejudice suffered can be compensated by way of damages. 13.In the end, I allow the application. The notice of appeal is to be lodged and served within the next seven (7) days, and the record of appeal filed and served within the next 30 days from the date of this ruling. 14.Costs to abide by the outcome of the intended appeal DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF JULY, 2026.ALI-ARONI…………………………………JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR