https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11097

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **HCCOMM MISC. NO. E636 OF 2020** **LYDIA WAWERU T/A PURPLE ROYAL AUCTIONEERS ....……. APPLICANT** **-VERSUS –** **C & R HOLDINGS LIMITED ....……………………….…........... RESPONDENT** **RULING** 1. Litigation is not an ambush, nor should the corridors of justice be shrouded in procedural secrecy. Before this Court is an application that tests the delicate balance between the strict adherence to statutory timelines and the fundamental constitutional imperatives of a fair hearing. At the heart of this dispute lies a pivotal procedural question: Does a party's prior absence from a mention absolve the Court and the opposing counsel of the mandatory duty to issue a specific notice for the delivery of a ruling? 2. Consequently, this Court is called upon to determine firstly, whether the failure to issue such a notice constitutes a plausible explanation to warrant an extension of time to file an appeal out of time. Secondly, whether a stay of execution ought to issue to preserve the substratum of the intended appeal. **Background Facts** 3. Before the Court is the Chamber Summons dated 13th January, 2025, filed by **C & R Holdings Limited** *(the Respondent in the main suit, hereinafter referred to as "the Debtor")*. The Debtor seeks the following orders: 1. *Spent, as the order was not granted ex parte.* 2. *Spent, as the order was not granted ex parte.* 3. *THAT this Honourable Court be pleased to grant the Respondent an extension of time within which to file a memorandum of appeal by way of chamber summons setting grounds of appeal as provided for in the law appealing against the decision of taxing master (Hon. Chembeni L. Adisa) of 11 November 2024 allowing the Applicant’s Bill of Costs dated 3 March 2020 in the sum of Kshs. 296,036/-.* 4. *The costs of this application be in the cause.* 4. The Application was supported by the Affidavit of **Stanley K. Mutungu.** Hestated that the Debtor’s Advocates only became aware of the delivery of the Ruling, on 10th January, 2025. While the said Advocates were routinely checking the e-filing system, they discovered that a Ruling on the taxation of the Auctioneer's Bill had been delivered on 11th November, 2024. That it had been uploaded to the system without their knowledge. In that ruling, the Deputy Registrar taxed the Bill and awarded the Auctioneer costs of Kshs. 296,036/=. The Debtor maintained that the taxation was erroneous as the Bill was founded on a proclamation that had been set aside by the High Court in Nairobi High Court Commercial Miscellaneous Cause No. 882 of 2011. Further that no execution was ultimately carried out since the proclaimed goods belonged to third parties. 5. The Debtor further contended that neither the party nor its Advocates were served with a notice of delivery of the Ruling. The result was that the statutory period for challenging the taxation lapsed before they became aware of it. The Debtor therefore seeks extension of time and leave to file an appeal. It argues that it has meritorious grounds to challenge the taxation. That unless leave is granted, there is a real risk that execution may proceed on the taxed costs and resultant decree without affording the party an opportunity to contest the same. 6. In response**, Lydia Waweru** *(the Applicant in the main suit, hereinafter referred to as "the Auctioneer")* filed a Replying Affidavit sworn on 5th March, 2025. She stated that the Auctioneer opposes the application for extension of time. This is on the ground that the Debtor has failed to demonstrate sufficient cause to warrant the exercise of the Court's discretion in its favour. The taxation ruling was delivered on 11th November, 2024, whereas the present application was only filed on 15th January, 2025. That this is approximately three months later. Thus, rendering the delay inordinate and inexcusable. According to the Auctioneer, the explanation advanced by the Debtor is untenable. That the Debtor had been duly served with a Mention Notice for 1st October, 2024 but failed to attend Court when the Ruling date of 11th November, 2024 was fixed. 7. Further, the Debtor has consistently failed to participate in the proceedings despite service, including failing to attend the taxation hearing on 24th February, 2023. Therefore, the Debtor has not approached the Court with clean hands and is undeserving of the equitable relief sought. Granting the application would occasion substantial prejudice to the Auctioneer. This is given that the Bill of Costs was filed in March 2020 and the Debtor only obtained a ruling thereon after four years. That any further delay would unjustly hinder the Auctioneer who is the Applicant in the main proceedings from enjoying the fruits of the taxation. **Issues for determination** 8. Having carefully considered the Application, the response, and the written submissions and oral highlights by Counsel for the parties, the Court frames the following issue for determination: 1. *Whether the failure to serve a notice of delivery of the ruling constitutes a plausible and satisfactory explanation for the delay.* 2. *Whether the Court should extend the time to the Applicant to lodge the Appeal.* **Analysis** 9. The Debtor’s Application is premised on the provision of **Rule 55(5) of the Auctioneers Rules**, which provides that ***“the memorandum of appeal, by way of chamber summons setting out the grounds of the appeal, shall be filed within 7 days of the decision of the registrar or magistrate.”*** 10. The impugned Ruling was delivered on 11th November, 2024, and the Debtor has filed the present Application dated 13th January, 2025 seeking to extend the time for filing the appeal or admission of the appeal out of time. 11. The relatively short time for the filing of the Appeal points out to a matter that ought to be filed, heard and determined expeditiously. There is no requirement for filing of a Record of Appeal or for taking of directions. 12. The Court draws upon its inherent jurisdiction to extend time once the stipulated time for doing the thing has expired. This discretion though unfettered, must be exercised judiciously and not capriciously. This aligns with the provisions of **Article 159 of the Constitution**. ***a)******Whether the failure to serve a notice of delivery of the ruling constitutes a plausible and satisfactory explanation for the delay*** 13. The fundamental question placed before this Court is whether a decision ought to be delivered without notice to a party, particularly where that party failed to attend a prior mention where the Ruling date was fixed. 14. The Debtor submits that because the Respondent skipped the mention on 1st October, 2024, they are the authors of their own misfortune and cannot rely on the lack of a specific "Notice of Delivery of Ruling" to excuse their delay. The Debtor relies on the rigid proposition that a litigant must vigilantly track their case. 15. While it is trite law that equity aids the vigilant and not the indolent, this Court must temper that doctrine with the constitutional imperatives of a fair hearing under **Article 50(1) of the Constitution**. The delivery of a judgment or ruling without notifying the parties is an affront to the principles of natural justice. **Order 21 Rule 1 of the Civil Procedure Rules** commands that decisions must be pronounced upon notice to the parties or their Advocates. 16. A Mention Notice is an invitation to attend Court for directions. It is not synonymous with a Notice of Delivery of Ruling. A party's failure to attend a mention does not absolve the Court Registry or the opposing Counsel of the mandatory duty to serve a specific notice indicating when the final decision will be rendered. Justice must not only be done but must be seen to be done, and Court processes must not be shrouded in secrecy. 17. This position is fortified by the Court of Appeal’s reasoning in **Athuman Nusura Juma v Afwa Mohamed Ramadhan [2016] KECA 395 (KLR).** The Appellate Court faced a scenario involving confusion over a ruling date. The Court of Appeal held that in the absence of a proper notice, the failure to file a notice of appeal within the prescribed time was satisfactorily explained, granting the applicant the benefit of the doubt. 18. Therefore, it is the considered opinion of this Court that a Court ought not to deliver a decision without issuing a specific notice of the Ruling date to all parties, regardless of prior absences. The failure to issue such notice directly impacts the computation of time; the statutory clock cannot fairly run against a party who has been kept in the dark by a procedural omission. This failure constitutes a valid and plausible explanation for the ensuing delay. 19. The Court is persuaded that the Debtor having no knowledge of the delivery of the Ruling was prejudiced by the lack of notice, rendering them unable to ascertain the commencement of the statutory timeline. ***b) Whether the Court should extend the time to the Applicant to lodge the Appeal.*** 20. While this Court acknowledges that it possesses the discretion to extend time for the filing of an appeal, such discretion is neither automatic nor available as of right. Like all equitable and discretionary remedies, it may only be exercised where an applicant has demonstrated sufficient and credible reasons accounting for the delay. The Applicant also has a duty to place before the Court adequate material to justify the grant of the orders sought. 21. In ***Leo Sila Mutiso –Vs – Rose Hellen Wangari Mwangi CA Application No. Nairobi, 255 of 1997*** it was held: ***“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether or not to grant an extension of time are: firstly, the length of the delay; secondly, the reason for the delay; thirdly (possibly) the chance of the appeal succeeding if the application is not granted; and fourthly, the degree of prejudice to the respondent if the application is not granted.”*** 22. The instant application was filed on 13th January, 2025, a period of two months after the said decision was rendered. The reason for the delay, according to the Debtor, was that no notice of delivery of the ruling of 11th November, 2024 was ever served upon the Debtor or its Advocate. Therefore, by the time Debtor’s advocates discovered the Ruling already uploaded, the 7-day window for filing had already expired on 18th November, 2024. 23. The Auctioneer in her Replying Affidavit has deponed as follows: *“6. THAT the Applicant served the Respondent with a Mention Notice dated 19th September, 2024 for 1st October, 2024 and an Affidavit of Service was filed to that effect. (Annexed hereto and marked "LW-2(a) and is a copy of the Mention Notice and Affidavit of Service).* *7. THAT despite being served, the Respondent failed to attend Court on I October, 2024, when the Court set the Ruling date of 11th November 2024. Had the Applicant attended Court on 1st October 2024, it would have been able to attend the Ruling date on I lth November 2024.”* 24. In light of the above, the Court finds that the Debtor was not notified of the Ruling date and had no idea that the matter was scheduled for a Ruling on that date. It is immaterial that it had not been appearing in Court before despite notice. It was still owed a duty to be notified of the Ruling date. To hold otherwise would subject the judicial process to allegations of opacity and compromise the right to a fair hearing. 25. The Court is persuaded that the Application is meritorious. The Court pays homage to the guiding principles on extension of time set out in **Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR).** The Court is reminded that it is exercising an equitable discretion and not a right. The Applicant has had to satisfy the Court that it is deserving of the orders sought. The Debtor has advanced good reasons for the delay, it is not inordinate and it has an arguable case from the facts set out in the Affidavit. The circumstances of this case call for ventilation of the Appeal before this Court. 26. As to costs the same are awarded at the discretion of this Court. Costs ordinarily follow the event. The order that commends itself to this Court is that the costs be in the cause. **Determination** 27. The Debtor’s application by way of a Chamber Summons dated 13th January, 2025 is allowed in the following terms: 1. *THAT this Honourable Court HEREBY grants the Respondent C & R HOLDINGS LIMITED an extension of time within which to file a memorandum of appeal by way of chamber summons setting grounds of appeal as provided for in the law appealing against the decision of taxing master (Hon. Chembeni L. Adisa) of 11th November, 2024 allowing the Applicant* **LYDIA WAWERU T/A PURPLE ROYAL AUCTIONEERS*’s*** *Bill of Costs dated 3rd March, 2020 in the sum of Kshs. 296,036/-.* 2. *The said Appeal/Reference to be filed within Seven (7) days from the date of this Ruling.* 3. *The costs of this application be in the cause.* 28. It is so ordered. **DATED, SIGNED AND DELIVERED AT MILIMANI THIS 22ND DAY OF JULY, 2026.** **NJOROGE BENJAMIN K.** **JUDGE** In the presence of: N/A for the Debtor **C & R HOLDINGS LIMITED.** Mr. Banji for the Auctioneer **LYDIA WAWERU T/A PURPLE ROYAL** **AUCTIONEERS**. Mr. John Paul - Court Assistant.