https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1255

Imbwaka & another v Kingdom Bank Ltd (Former Jamii Bora Ltd) & another (Civil Appeal (Application) E677 of 2025) [2026] KECA 1255 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1255 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E677 of 2025 AO Muchelule, JA July 3, 2026 Between Jackton Wiyema Imbwaka 1st Applicant Genevieve Musumba 2nd Applicant and Kingdom Bank Ltd (Former Jamii Bora Ltd) 1st Respondent Muganda Wasulwa T/A Keysian Auctioneers 2nd Respondent (Being an application for extension of time to file and serve the appeal out of time from the ruling of the High Court of Kenya at Nairobi (Chepkwony, J.) dated 16th February 2024 in Misc. Appl. No. 006 of 2022) Ruling 1.By a motion dated 28th July 2025 brought under Rules 4, 41 and 42 of the Court of Appeal Rules, the applicants seek leave to file an appeal out of time. They contend that, being aggrieved by the ruling of the superior court (Chepkwony, J.), they promptly requested a certified copy of the ruling and proceedings but were not supplied within time, and as a result were unable to lodge an appeal within the prescribed 14 days. They further submit that the intended appeal is arguable and has strong prospects of success, and that no prejudice will be suffered by the respondents if the application is allowed. 2.The motion is unopposed. 3.Before the superior court, vide motion dated 1st April 2022, the applicants herein sought an injunctive order restraining the respondents, seeking an order that the respondents be liable for the wrongful repossession and sale of the applicants’ vehicle motor vehicle registration no. KBZ 452U. The applicants alleged, among other things, that the respondents had unlawfully repossessed a motor vehicle, acted in contempt of court orders issued on 9th February 2017, and were liable for the reliefs sought in the application. 4.The respondents opposed the application through grounds of opposition, contending that the motion was incompetent as it had been prepared, signed and filed by Kariuki & Co. Advisory, an entity that was not qualified to act as an advocate within the meaning of the Advocates Act. They further argued that the matters raised had previously been litigated and determined and were therefore barred by the doctrine of res judicata. 5.The superior court (Chepkwony, J.) in its ruling delivered on 16th February 2024, the learned judge examined sections 2, 9 and 34 of the Advocates Act and the decision of the Supreme Court in National Bank of Kenya Ltd -vs- Anaj Warehousing Ltd [2015] KESC 4 (KLR). The court found that Kariuki & Co. Advisory was not a qualified advocate or law firm authorised to draw, prepare or file pleadings on behalf of litigants. Consequently, the learned judge held that the application and related documents prepared by that entity were void and incompetent. 6.On the issue of res judicata, the court considered section 7 of the Civil Procedure Act and the applicable authorities. After reviewing previous proceedings and decisions involving the same parties, the court found that the matters raised in the application, particularly the challenge to the validity of the chattel mortgage and issues surrounding the repossession of the motor vehicle, had already been litigated and determined in earlier suits and appeals. The learned judge therefore concluded that the application was barred by the doctrine of res judicata. 7.Regarding contempt of court, the court restated the principles governing civil contempt and emphasized that personal service of the order alleged to have been disobeyed must ordinarily be demonstrated. The learned judge found that the applicants had not produced any affidavit of service or other evidence showing that the respondents had been personally served with the orders allegedly breached or had otherwise been made aware of them. As a result, the allegation of contempt was not established. In the end, the learned judge found that the application was incompetent, barred by res judicata, and unsupported by evidence of contempt. Accordingly, the Notice of Motion dated 1st April 2022 was dismissed with costs to the respondents. 8.The applicants submit that they should be granted leave to appeal out of time against the impugned ruling delivered on 16th February 2024, which found their application incompetent and bad in law. They contend that although the ruling was delivered on that date, they were unable to lodge an appeal within the prescribed period because they did not obtain a copy of the ruling in time to appreciate its reasoning and formulate the intended appeal. According to the applicants, they patiently awaited the ruling after its delivery and, upon failing to receive it, wrote to the Deputy Registrar on 6th March 2024 requesting a certified copy. They maintain that despite several follow-up requests, the ruling was not availed until 30th October 2025, thereby occasioning the delay complained of. The applicants further argue that the intended appeal is arguable and has overwhelming chances of success, asserting that evidence already produced by the 1st respondent demonstrates that the applicants had fully repaid the credit facilities extended to them and that, in fact, it is the 1st respondent that remains indebted to the applicants. They therefore contend that the delay is neither inordinate nor inexcusable, having been occasioned by circumstances beyond their control, and that unless the Court enlarges time, they will be denied an opportunity to pursue substantive justice through the appellate process. The applicants further maintain that refusal of the application would render Civil Application No. E677 of 2025 academic and defeat its substratum. Invoking Article 159 of the Constitution, they urge the Court to administer justice without undue regard to procedural technicalities and rely on the decision in Simon - vs- Oira (Civil Appeal No. 215 of 2024) [2025] KEHC 7211 (KLR), wherein the High Court held that delay attributable to administrative challenges within the court system was not inordinate and granted leave to appeal out of time. They submit that their application similarly satisfies the relevant criteria for extension of time, namely that the delay has been satisfactorily explained, the intended appeal is arguable, no prejudice will be occasioned to the respondents, and the interests of justice favour the grant of the orders sought. 9.The discretion under Rule 4 of the Court of Appeal Rules is unfettered but must be exercised judicially upon well-settled principles, namely the length of delay, the reason for the delay, the arguability of the intended appeal, and the prejudice to the respondent, as stated 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 Nicholas Kiptoo Arap Korir Salat -vs- IEBC & 7 Others, Supreme Court Application No. 16 of 2014 [2014] eKLR. In the present case, the delay of over one year and five months from the date of the ruling delivered on 16th February 2024 is plainly inordinate and calls for a plausible and satisfactory explanation. 10.The applicants attribute the delay to the failure by the court registry to supply a certified copy of the ruling despite a request allegedly made on 6th March 2024 and subsequent follow-ups. However, no certificate of delay has been produced, which is the recognised legal basis for accounting for and excluding time allegedly spent awaiting proceedings or a ruling. In the absence of such certificate, the alleged administrative delay remains unverified and cannot, in law, be relied upon to explain or discount the period of delay. Further, it is settled that a party does not require a certified copy of a ruling in order to lodge a notice of appeal, and the explanation therefore fails to account for the prolonged inaction from the date of delivery of the ruling. The inconsistency in the applicants’ chronology, particularly the assertion that the ruling was only availed on 30th October 2025 whereas the application was filed on 28th July 2025, further undermines the credibility of the explanation. 11.On the arguability of the intended appeal, I am satisfied that the issues raised touching on competence of pleadings drawn by an unqualified entity, the application of the doctrine of res judicata, and the evidentiary threshold for contempt are not frivolous and meet the low threshold required at this stage. However, arguability, while present, does not of itself justify the exercise of discretion in the face of an inordinate and unexplained delay. There is no demonstrated prejudice to the respondents, but absence of prejudice alone cannot cure a fundamentally deficient explanation for delay. Taking into account the inordinate delay, the absence of a certificate of delay, the insufficiency and inconsistency of the explanation offered, and the arguability of the intended appeal, I find that the applicants have not satisfied the threshold for enlargement of time under Rule 4, and accordingly the discretion of the Court ought not to be exercised in their favour. 12.The motion dated 28th July 2025 is dismissed accordingly. 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.Signed DEPUTY REGISTRAR