https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1269

Harambee Co-operative Savings Credit Society Ltd v Toshike Construction Company Ltd (Civil Appeal (Application) E536 of 2022) [2026] KECA 1269 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1269 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E536 of 2022 AO Muchelule, JA July 3, 2026 Between Harambee Co-operative Savings Credit Society Ltd Applicant and Toshike Construction Company Ltd Respondent (Being an application for extension of time to file and serve the record of appeal from the judgment of the Environment and Land Court of Kenya at Nairobi (O. Mboya, J.) dated 20th December 2021 in ELC Case No. 230 of 2019 Environment & Land Case 230 0f 2019 (Formerly Civil Case 121 of 2019 ) Ruling 1.By a motion dated 2nd April 2026, brought under Rule 4 of the Court of Appeal Rules, 2022 and Article 159 of the Constitution, the applicant, Harambee Co-operative Savings and Credit Society Ltd, seeks an order enlarging or extending time within which to file and serve the Record of Appeal. The applicant further prays that, upon such extension, the Record of Appeal dated 5th August 2022 and filed on 17th August 2022 be deemed as duly filed in respect of the judgment delivered by O. Mboya, J. on 20th December 2021. 2.The application is premised on the grounds, inter alia, that the Memorandum and Record of Appeal were filed on 17th August 2022, being the sixty-first day after the collection of the certified typed proceedings, thereby occasioning a delay of only one day. The applicant attributes the delay to persistent systemic challenges affecting the Judiciary’s e-filing platform. It is contended that the technical difficulties persisted between 5th August 2022 and 25th August 2022 and hindered the filing process. By the time the applicant’s advocate’s clerk successfully uploaded the Memorandum and Record of Appeal, he was unaware that the prescribed timelines had already lapsed. The applicant maintains that the delay was minimal, satisfactorily explained, and occasioned by circumstances beyond its control. It further asserts that the intended appeal is arguable and that no prejudice would be occasioned to the respondent if the orders sought are granted. 3.In support of the application, Josephat Karanja, a clerk in the firm of M/s Waweru Gatonye & Co. Advocates, deponed that, being dissatisfied with the impugned judgment, the applicant lodged a Notice of Appeal dated 17th January 2022 within the prescribed time. He further deponed that a letter bespeaking proceedings was addressed to the Deputy Registrar of the superior court on 19th January 2022. According to the Certificate of Delay dated 8th July 2022, the typed proceedings were collected on 17th June 2022, accounting for a delay of 149 days between 19th January 2022 and 17th June 2022. Upon receipt of the proceedings, the applicant prepared the Record of Appeal by 5th August 2022, demonstrating its readiness and willingness to comply with the prescribed timelines. The deponent reiterated that efforts to file the appeal documents were frustrated by technical difficulties with the e-filing system. He maintained that the resultant delay was neither intentional nor inordinate but arose from circumstances beyond the applicant’s control. 4.The application is opposed. In her replying affidavit, Felisters Bochaberi Onkware, a shareholder and director of the respondent, deponed that Josephat Karanja described himself as a clerk from M/s Waweru & Co. Advocates, whereas the advocates on record were M/s Waweru Gatonye & Co. Advocates. She further contended that the clerk’s deposition contradicted an earlier replying affidavit filed in opposition to the respondent’s application dated 12th March 2025, in which it had been asserted that the Record of Appeal was duly filed within sixty days of 17th June 2022. She averred that the applicant’s previous advocates, M/s Oraro & Co. Advocates, had applied for certified copies of the proceedings on 18th January 2022 and that, by a letter dated 19th May 2022, the Deputy Registrar notified them that the proceedings were ready for collection. According to the respondent, the requisite charges were paid and the proceedings collected on 20th May 2022. Consequently, the period properly excluded by the Certificate of Delay was 122 days between 19th January 2022 and 20th May 2022, as reflected in the draft Certificate of Delay. It was further deponed that the proceedings were certified on 16th June 2022, while the applicant’s current advocates only sought certified copies of the judgment and decree by letters dated 13th June 2022, some 175 days after delivery of the impugned judgment. 5.The respondent further contended that the Certificate of Delay relied upon by the applicant was misleading because it indicated that the proceedings had been applied for by M/s Waweru Gatonye & Co. Advocates rather than M/s Oraro & Co. Advocates, who had in fact made the original request. She also pointed out that, following a successful application for extension of time to file an application seeking to strike out the unsigned and unstamped Notice and Memorandum of Appeal, the present application only seeks enlargement of time in respect of the Record of Appeal. The respondent expressed doubt as to the veracity of the alleged systemic challenges affecting the e-filing platform and dismissed as far-fetched the explanation that an unsigned Memorandum of Appeal had been filed merely to trigger the system. In any event, she maintained that the unsigned Memorandum of Appeal itself had been filed outside the prescribed sixty-day period without leave of the Court. The respondent therefore contended that the application is an attempt to cure substantive and prejudicial defects in the appellate process and urged the Court to dismiss it with costs. 6.The applicant submitted that the delay in lodging the Record of Appeal was only one day, the same having arisen from technical challenges affecting the Judiciary e-filing system. It argued that the delay was neither inordinate nor intentional, was satisfactorily explained through affidavit evidence and supporting documents, and that the intended appeal was arguable as it challenged the trial court’s grant of specific performance notwithstanding alleged non-payment of the balance of the purchase price. The applicant therefore urged the Court to exercise its discretion under Rule 4 and deem the record of appeal duly filed. 7.The respondent submitted that the application was incompetent because the record of appeal had been filed out of time without prior leave and was therefore a nullity incapable of subsequent validation. In the alternative, it argued that the applicant had failed to satisfy the requirements for extension of time, contending that the delay was in reality about forty-six months, that the explanation founded on e-filing difficulties was not credible, that the defects in the appeal could not be cured by Article 159(2)(d) of the Constitution, and that allowing the application would prejudice the respondent by further delaying its enjoyment of the fruits of judgment. 8.Before the superior court, the respondent, Toshike Construction Company Limited, instituted the suit seeking specific performance of a sale agreement dated 17th March 2006 relating to maisonettes G, H and I erected on L.R. No. 209/7546. Through the evidence of Felisters Bochaberi Onkware, the respondent testified that it paid the contractual deposit of Kshs. 2,010,000 and that the agreement required the applicant to subdivide the parent title into three separate portions and transfer each portion under a separate freehold title. The respondent further stated that, with the applicant’s consent, it undertook extensive renovations, took possession of the premises, and remained ready and willing to complete the transaction, including offering to pay the balance of the purchase price. The respondent relied on numerous correspondences in which the applicant acknowledged the agreement, explained delays in the subdivision process, and assured the respondent that completion would eventually be achieved. 9.The applicant admitted entering into the agreement and acknowledged its obligation to undertake the subdivision process. Through the evidence of Dr. George Onchiri, the applicant stated that surveyors had been engaged to facilitate subdivision but contended that the agreement did not reflect what it had intended to sell. According to the applicant, its intention had been to sell only the maisonettes and associated developments, whereas the respondent was asserting rights extending to undeveloped portions of the land. On that basis, the applicant argued that the transaction had become impossible or impracticable to complete and counterclaimed for discharge from the agreement and refund of the monies paid by the respondent. 10.Upon evaluating the evidence and the terms of the agreement, the learned Judge found that the sale agreement was clear, unambiguous, and expressly required the subdivision of L.R. No. 209/7546 into three separate freehold titles for transfer to the respondent. The court rejected the applicant’s reliance on advertisements and subjective intentions to vary the written terms of the contract, holding that the parties were bound by the agreement they executed. The court further found that the contract remained capable of performance, that the respondent had consistently demonstrated readiness and willingness to complete the transaction, and that the applicant’s plea of frustration had neither been properly pleaded nor proved and, in any event, was self-induced. Consequently, the court granted an order of specific performance, dismissed the applicant’s counterclaim, declined the respondent’s claims for damages and exemplary damages, and awarded costs of the suit and counterclaim to the respondent. 11.In the ruling of this Court (L. Njuguna, JA) delivered on 6th March 2026, the learned judge in granting the respondent leave to file an application to strike out the notice, memorandum and record of appeal within 7 days thereof, directed that the respondent does file a separate application for striking out as it had filed an omnibus application under the Rule 4 application. 12.Rule 4 of the Court of Appeal Rules, 2022 grants this Court discretion to extend time, but that discretion is judicial and must be exercised upon settled principles. These include the length of delay, the explanation for the delay, the arguability of the intended appeal, and prejudice to the respondent, as restated in Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi [1999] 2 EA 231 (CAK) and consistently applied in Fakir Mohamed -vs- Joseph Mugambi & 2 Others Civil Application No. 332 of 2004 and Stanley Kang’ethe Kinyanjui -vs- Tony Ketter & 2 Others Civil Application No. 31 of 2013. The Certificate of Delay is also relevant in assessing computation of time, but it is only prima facie evidence and not conclusive, as held in Wasike -vs- Swala [1984] KLR 591. 13.In considering this application, I find it necessary to consider the overall procedural history leading to the present motion. The judgment was delivered on 20th December 2021, while the application for extension of time was filed on 2nd April 2026, a period of approximately forty-six months. I find that this period is significant and must be considered in the context of whether there has been a satisfactory and continuous explanation for delay. However, I also bear in mind that the Court does not treat the entire period as automatically decisive in isolation, but evaluates it alongside the steps taken towards pursuing the intended appeal. 14.The applicant’s narrower complaint relates to the filing of the Record of Appeal, which is said to have been lodged only one day out of time, relying on a Certificate of Delay indicating that proceedings were collected on 17th June 2022. The respondent, however, challenges that position, contending that the proceedings were ready earlier, in May 2022, and therefore that the computation of time in the certificate is inaccurate. I find that, at this interlocutory stage, the Certificate of Delay remains prima facie evidence of the excluded period, though it is not conclusive and may be questioned where credible material is placed before the Court. 15.Even assuming in favour of the applicant that the Record of Appeal was only marginally out of time, I find that this does not, on its own, resolve the broader question before the Court. The key issue remains whether the applicant has provided a reasonable and continuous explanation covering the entire period of delay leading to the present motion. The explanation offered, based on alleged e-filing system challenges, may account for difficulties encountered in August 2022, but it does not sufficiently explain the extended lapse of time up to April 2026. 16.On arguability, I find that the intended appeal raises bona fide issues concerning the interpretation and enforcement of the sale agreement and the order of specific performance. These are not frivolous issues and meet the low threshold applicable at this stage. However, arguability alone is not sufficient where the delay is substantial and not adequately explained. 17.Taking all relevant factors into account, I find that the applicant has not satisfactorily explained the entire period of delay. The delay of approximately forty-six months, when viewed in its proper context, is inordinate, and the explanation offered is insufficient to justify the exercise of discretion under Rule 4. Accordingly, I find that this is not a proper case for extension of time, and the application is dismissed with costs. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY 2026.A.O. MUCHELULE..................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.