Maara v Housing Finance Company of Kenya Ltd & another

**IN THE COURT OF APPEAL AT NAIROBI** **(CORAM: MUMBI NGUGI, JA. (IN CHAMBERS))** **CIVIL APPEAL (APPLICATION) NO. E692 OF 2025 BETWEEN** **JOHN KARUGU MAARA APPLICANT** **AND HOUSING FINANCE COMPANY OF** **KENYA LTD………………………………………….. 1ST RESPONDENT THE UNIT PAINTBALL LIMITED 2ND RESPONDENT** *(Being an application for leave to file an appeal out of time against the judgment of the High Court (Mongare J) delivered on 1st September, 2025* *in* ***HC Comm No. 136 of 2018*)** **\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*** **RULING** 1. In the application dated 11th November 2025, the applicant, **John Karugu Maara**, seeks leave to file an appeal out of time against the judgment of the High Court (Mongare J) in **HC Comm Case No. 136 of 2018** dated 1st September 2025; and that the Court be pleased to “*deem the Appeal Notice of Appeal dated 2nd September 2025 as regularly filed.”* 2. The application is expressed to be brought under rules 4, 41(3) and 43 of the Court of Appeal Rules and all other enabling provisions of the law and is supported by the applicant’s affidavit sworn on 11th November 2025. 3. The applicant avers that in its judgment, the High Court dismissed his claim and allowed the 1st respondent’s counterclaim, entering judgment in favour of the 1st respondent in the sum of Kshs. 29,601,819.23, with interest and costs thereon. 4. It is the applicant’s averment that his advocates immediately filed a notice of appeal on 2nd September 2025; that they thereafter, on the same date, wrote to the Deputy Registrar of the High Court requesting for certified copies of the proceedings and judgment, a request which was also uploaded via the e-filing system. 5. The applicant avers that the High Court registry delayed in furnishing the certified proceedings and judgment, so that the 60-day period for filing the record of appeal lapsed before the registry could supply the appellant with the documents necessary for filing the record of appeal. 6. It is the applicant’s averment, further, that his counsel inadvertently failed to copy the respondents’ advocates in the letter to the registry, which mistake precluded reliance on the proviso to rule 84(2) which would have extended time for filing of the record of appeal; and that the error was rectified only after discovery of the oversight. The applicant avers that the delays and oversights were inadvertent and not a deliberate failure by the applicant. 1. It is averred further that on 9th September 2025, the 1st respondent’s advocates wrote to the High Court pressing for payment of the judgment debt and enclosing a bill of costs, and on 24th October 2025, served a party-and-party Bill of Costs on the applicant’s counsel. Further, that the 1st respondent also indicated its intention to commence execution of the judgment debt. The applicant avers therefore that unless time is extended, he will suffer irreparable loss and damage because the intended appeal will be rendered nugatory. He asserts that the intended appeal raises serious issues which warrant consideration, including, among others, whether the High Court misinterpreted section 97(2) of the Land Act, whether it erred in evaluating conflicting valuation evidence, and whether it failed to properly assess the 1st respondent’s contractual liability. He prays that the application be allowed. 2. The 1st respondent opposes the application by an affidavit in response sworn by **Hedaya Malesi**, its Legal Manager, on 8th December 2025. It is averred for the 1st respondent that the applicant has not marked any of the annexures to his affidavit, nor have they been commissioned or notarised; that this is a grave error going to the heart of the annexures, and the court should disregard them all. Further, that the applicant was yet to serve the 1st respondent’s advocates with the letter he purports to have sent to the Deputy Registrar on 2nd September 2025 seeking certified copies of the judgment delivered on 1st September 2025, or the proceedings, and that the said letter does not comply with the basic rules of this Court. 1. The 1st respondent avers that the applicant has not presented before the Court any evidence regarding his advocates’ inadvertent error; nor has he shown when he discovered the error and the legal steps he took against his counsel. Further, that he has not given a satisfactory explanation for not complying with the Rules of this Court. The 1st respondent avers that the applicant has not demonstrated that his appeal is arguable; that his indolence or negligence will cause the 1st respondent prejudice; and the 1st respondent prays that the application be dismissed. 2. The parties have filed submissions dated 2nd and 8th December 2025 respectively which I need not rehash as they essentially reiterate their respective averments and set out the applicable law and jurisprudence, which is well settled. 1. On an application under rule 4 of this Court’s Rules seeking extension of time, in exercise of its discretion, the court is required to consider the length of the delay, the reasons for the delay, (possibly) the chances of the appeal succeeding should the orders sought be granted, and the prejudice likely to be suffered by the respondent should the orders sought be granted. 2. In this case, the applicant, who is domiciled in the United Kingdom, has sworn an affidavit in support of his application before one Raj Preet Singh Dhillon, a Notary Public in the United Kingdom. The applicant avers that he has annexed several documents to his affidavit, but none of them is marked as he has averred, nor is any of them notarized. Rule 9 of the **Oaths and Statutory Declarations Rules** provides that: ***All exhibits to affidavits shall be securely sealed thereto under the seal of the commissioner, and shall be marked with serial letters of identification.*** 1. Where the annexures are not marked and commissioned or notarised as required under rule 9, the law is that such documents cannot be relied on. In ***Zaheer Jhanda &*** ***another v Independent Electoral & Boundaries Commission & 3 others*** [2018] KECA 432 (KLR), this Court agreed with the striking out of documents that had been filed in violation of rule 9 of the Oaths and Statutory Declarations Rules, noting that the rule is intended to: ***“Prevent various kinds of mischief and to ensure that a deponent owns and secures all the exhibits annexed to his affidavit. The rule further aims to prevent litigant from sneaking into the record documents that were not part of the affidavit, thus prejudicing their opponents.”*** 1. Further, in ***Pharmacy and Poisons Board & another; Mwiti & 21 others*** (Respondent) [2021] KECA 97 (KLR), this Court, while holding that an unsigned affidavit is fatally defective and of no value to an applicant, stated as follows with respect to unmarked and unsealed annexures: “***7. The same fate befalls unmarked and unsealed annexures. They are of no value to the application to which they relate in view of the fact that an affidavit and the annexures attached thereto constitute evidence. To qualify as evidence, such annexures must be marked and sealed by a Commissioner for oaths as required by Rule 9 of the Oaths and Statutory Declarations Rules.”*** 1. In the face of documents placed before the Court without compliance with the express provisions of rule 9 of the Oaths and Statutory Declarations Rules, I have no evidence before me on the basis of which I can make an assessment and determination on whether or not to exercise discretion in favour of the applicant. Accordingly, the application dated 11th November 2025 being devoid of evidence, it is hereby dismissed with costs to the 1st respondent. 2. In the interests of justice, however, the applicant is granted leave to file a compliant application within fourteen (14) days from the date hereof, failing which the leave granted herein shall lapse. **Dated and delivered at Nairobi this 11th day of September, 2026.** **MUMBI NGUGI**  **……………………………….** **JUDGE OF APPEAL** *I certify that this is a true copy of the original.* ***Signed DEPUTY REGISTRAR***