Labos Technologies (K) Ltd & 2 others v HFC Ltd (Civil Application E239 of 2026) [2026] KECA 1118 (KLR) (12 June 2026) (Ruling)

Labos Technologies (K) Ltd & 2 others v HFC Ltd (Civil Application E239 of 2026) [2026] KECA 1118 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1118 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E239 of 2026 S ole Kantai, JA June 12, 2026 Between Labos Technologies (K) Limited 1st Applicant Laban Mbogo Kihara 2nd Applicant Rose Muthoni Mwaura 3rd Applicant and HFC Limited Respondent (Being an application for extension of time to file and serve the Record of Appeal against the Ruling of the High Court at Machakos (J.W.W. Mongare, J.) delivered on 11th February, 2026 in H.C. C. Case No. E276 of 2025) Ruling 1.I am asked in the Motion brought under rule 4 of the Court of Appeal Rules that I be pleased to extend time for the applicants to file and serve Notice of Appeal together with Record of Appeal out of time against the ruling of the High Court delivered on 11th February, 2026; that leave be granted to the applicants to file and serve notice of appeal and record of appeal within such period as the Court may deem fit. In grounds in support of the Motion and in a supporting affidavit of Laban Mbogo Kihara it is said amongst other things that the applicants are desirous of appealing; that they failed to file notice of appeal together with record of appeal stipulated timelines “…due to the delay in obtaining proceedings…”, that the intended appeal is arguable with high chances of success and that the respondent will not suffer prejudice if the orders are granted. Attached to the affidavit are orders granted by Mongare, J. on 11th February, 2026 when High Court Case No. HCCOMM/E726/2025 came up for mention. The Judge made directions where the applicants were ordered to pay part of the arrears of Kshs.7,000,000 due to the respondent to pay by 30th March, 2026; in default of such payments the defendant were allowed to commence exercise of the statutory power of sale; interim orders in place were ordered to lapse on 30th March, 2026 if no payment was received by the defendant “…and the Bank shall be at liberty to resume its recovery efforts within the law...” The case was to be mentioned again on 6th May, 2026. There is also an unlodged notice of appeal dated 8th May, 2026. 2.Regina Anyika, the respondent’s Director of Legal & Company Secretary in a replying affidavit says that the Motion is misconceived, incompetent, overtaken by events and an abuse of the process of the Court:“… as it seeks leave to appeal out of time against interim directions which had lapsed by their own terms and by the applicants’ default whereafter the charged property was lawfully sold in exercise of the respondent’s statutory power of sale.” 3.Further, that the orders of 11th February, 2026 were given at a mention date for directions on the applicants’ application for injunction to restrain the respondent from exercising its statutory power of sale where the applicants were directed to pay part of the arrears by 30th March, 2026 failing which the interim orders then in place would lapse; that the said order was not a final determination of the suit, or a final determination of the parties proprietary rights but a case management and interim preservation directive issued by the High Court in the exercise of judicial discretion pending further directions. She says at paragraphs 7 – 10 (inclusive):“ 7.That the Applicants’ complaint that they were unable to lodge a Notice of Appeal because of alleged delay in obtaining typed proceedings is legally untenable and factually unsupported as typed proceedings are not required for purposes of lodging a Notice of Appeal being a procedural notice signifying an intention to appeal and is lodged without the typed proceedings. 8.That no credible explanations has been tendered for the Applicants failure to file the Notice of Appeal within time after the Order was issued on 11th February, 2026. 9.That the Applicants’ allegation that they experienced difficulties in obtaining typed proceedings is unsupported by any documentary evidence, including letters bespeaking proceedings, payments receipts, follow-up letters to the registry, registry responses, or any other evidence of diligent pursuit of proceedings. 10.That the Applicants’ have also not exhibited any evidence that they applied for certified copies of the Order or proceedings immediately after 11th February, 2026 nor have they explained why they waited until May 2026 to move this Honourable Court.” 4.The deponent says that the applicants having failed to comply with orders given during directions interim orders lapsed and the suit property subject of a mortgage was sold by public auction on 28th April, 2026 to a third party who acquired rights on purchase. It is said that the respondent would be prejudiced if the order sought is granted as it is still pursuing recovery of a substantial balance even after the mortgaged property was sold.I have seen and considered written submissions by both sides. 5.The principles that apply in an application for leave to extend time were well set out in the oft-cited case of Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi, Civil Application Nai. 251 of 1997 states as follows:It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well stated that in general the matters which this Court takes into account in deciding whether to grant an extension of time, are first, the length of the delay, secondly, the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted, and fourthly, the degree of prejudice to the respondent if the application is granted." 6.In the directions given on 11th February, 2026 the applicants were directed to pay a sum of money to be able to benefit from interim orders of injunction that they had obtained. They did not meet the condition on payment and the interim orders lapsed. 7.The applicants tell me that they were unable to lodge a notice of appeal because they had not been availed proceedings by the High Court. But why would a party require proceedings to lodge a notice of appeal? It is not necessary for proceedings to be available to enable a party to lodge a notice of appeal. A notice of appeal is a standard document whose form is set out in the Court of Appeal Rules. It is to be lodged within 14 days of the making of the decision (rule 77) and a record of appeal, which contains, inter alia, proceedings is lodged 60 days after lodging of notice of appeal (rule 84). As already submitted by the respondent the applicants have not shown what step they took to appeal. Notice of appeal which was not even lodged is dated 8th May, 2026 (nearly 3 months after directions given on 11th February, 2026). There is no letter bespeaking proceedings. There is nothing to show that any step was taken to indicate the applicants’ desire to appeal. I think in the circumstances there is inordinate delay which is not explained. The respondent tells me that the mortgaged property was sold and its recovery of a substantial balance will be prejudiced if I extend time as requested by the applicants 8.The applicants are not entitled to my exercise of discretion in their favour in those circumstances the circumstances and the Motion fails and I dismiss it with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE, 2026S. OLE KANTAI……………..……………… JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR