https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1341

Menengai Stores Ltd v Blue Nile Wire Products Ltd & another (Civil Application E379 of 2025) [2026] KECA 1341 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1341 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E379 of 2025 DK Musinga, JA July 10, 2026 Between Menengai Stores Limited Applicant and Blue Nile Wire Products Limited 1st Respondent KCB Bank Kenya Limited 2nd Respondent (Being an application to extend time to file an appeal from part of the Judgment and Decree of the Environment and Land Court at Milimani (Ogutu Mboya, J.) delivered on 13th June 2024 in ELC Case No. 41 of 2020 Environment & Land Case 41 of 2020 ) Ruling 1.In this application dated 23ʳᵈ June 2025 and brought, inter alia, under Articles 48 and 159(2)(d) of the Constitution, sections 3A and 3B of the Appellate Jurisdiction Act, and rules 1(2), 4, 43, 44(1), 89 and 90 of the Rules of this Court, I am asked to exercise my discretion and grant the applicant an extension of time within which to lodge and serve a Record of Appeal against part of the judgment of the Environment and Land Court at Nairobi (Oguttu Mboya, J.) delivered on 13ᵗʰ June 2024 in Nairobi ELC Case No. 41 of 2020. 2.In the application and the supporting affidavit sworn by Victor Mungai, an advocate practising in the firm of Daly Inamdar Advocates LLP, the applicant contends that it instituted Nairobi ELC Case No. 41 of 2020 against the respondents seeking, inter alia, an order of specific performance arising from an agreement for the sale of L.R. No. 12815, Kiambu, dated 23ʳᵈ March 2016. Vide a judgment delivered on 13ᵗʰ June 2024, the trial court declined to grant the order of specific performance but directed the 1st respondent to refund Kshs. 30,800,000/- together with interest at 18% per annum from 23ʳᵈ March 2016 until payment in full, granted the 1st respondent vacant possession of the suit property, and ordered the applicant to vacate the property within 180 days, failing which the 1st respondent would be at liberty to evict it. Being dissatisfied with part of the judgment, the applicant lodged a notice of appeal dated 26th June 2024 on 27th June 2024 and requested typed proceedings on the same date. The applicant also filed an application under rule 5(2)(b) of the Rules of this Court seeking stay of execution of the trial court’s judgment. 3.The applicant further contends that although it awaited notification from the trial court that the typed proceedings were ready, it only learnt that they had been prepared upon being served with the 1st respondent's application under rule 5(2)(b) of the Rules of this Court in Civil Appeal (Application) No. E711 of 2024. According to the applicant, reference was made in that application to the 1st respondent having already lodged a record of appeal, prompting it to make inquiries at the registry. Upon inquiry, it discovered that the trial court’s registry had, on 11ᵗʰ November 2024, sent the notification to the firm's general email address, info@CMS-DI.com, instead of the email addresses consistently used in its pleadings and correspondence, namely Litigation@CMS-DI.COM and Victor.Mungai@CMS-DI.COM. It avers that the proceedings were eventually collected on 19ᵗʰ February 2025 and that, although it obtained a Certificate of Delay on 8ᵗʰ April 2025, the certificate only covered the period up to 11ᵗʰ November 2024, being the date the notification was sent out and not the date the proceedings were collected. Its subsequent request to the Deputy Registrar to amend the Certificate of Delay so that it reflected 19ᵗʰ February 2025 as the end of the certified period was declined. 4.The applicant maintains that the present application was filed promptly after the refusal to amend the Certificate of Delay. It attributes the delay in lodging the record of appeal to its failure to receive the notification that the proceedings were ready, contending that the omission was inadvertent and not contumelious. It further avers that the intended appeal is arguable and has good prospects of success, that no prejudice will be occasioned to the respondents if the extension sought is granted, whereas it stands to suffer substantial prejudice if denied an opportunity to pursue its appeal. It accordingly urges the Court to exercise its discretion in its favour and enlarge time for filing and serving the record of appeal. 5.The application is opposed by the 2nd respondent by way of a replying affidavit sworn by John Wagacha Ng'ang'a, its Acting Sector Head, Manufacturing. He avers that the applicant has failed to establish sufficient cause to warrant the exercise of this Court's discretion to extend time for filing the record of appeal. He contends that the trial court delivered its judgment on 13ᵗʰ June 2024, and that the Deputy Registrar subsequently declined the applicant's request to amend the Certificate of Delay by a letter dated 15ᵗʰ April 2025, correctly certifying that the period of delay ran from 26ᵗʰ June 2024 to 11ᵗʰ November 2024. According to the 2nd respondent, the Certificate of Delay, once issued, is conclusive as to the period excludable under the Rules and cannot be varied to extend the certified period. 6.He further avers that the applicant does not dispute that the trial court transmitted the notification that the proceedings were ready on 11ᵗʰ November 2024, but merely complains that the notification was sent to a different email address within the same law firm. He maintains that all the email addresses relied upon by the applicant belong to its advocates' firm, are reflected on the firm's letterhead and court documents, and remain within the firm's exclusive control. He therefore contends that the internal allocation and monitoring of email addresses is an administrative matter for the applicant's advocates and cannot be visited upon the Court. In his view, the applicant's failure to monitor its official email address does not constitute sufficient cause for extension of time, and permitting litigants to circumvent statutory timelines on that basis would undermine certainty, discipline and finality in appellate litigation. He accordingly urges the Court to dismiss the application with costs. 7.The applicant filed written submissions dated 19ᵗʰ January 2026 in support of the application. The submissions largely reiterate the position taken in the application and supporting affidavit, namely, that the applicant has satisfied the requirements for extension of time under rule 4 of the Rules of this Court. The applicant maintains that the delay in lodging the record of appeal was satisfactorily explained, that the intended appeal is arguable, and that the respondents will suffer no prejudice if the extension sought is granted. In support of those propositions, reliance is placed on Leo Sila Mutiso v Rose Hellen Wangari Mwangi, Civil Application No. Nai. 255 of 1997, in which this Court set out the principles governing the exercise of its discretion in applications for extension of time. 8.The applicant further contends that the Certificate of Delay ought to have reflected the date on which the proceedings were actually delivered to it. It relies on Shobhaben Pankaj Patani v Crown Match Company Ltd & Others [2006] eKLR, where this Court underscored the significance of the actual date of delivery of proceedings in computing time for lodging an appeal. The applicant also relies on Landbank Real Estate Investment Trust Ltd v Standard Chartered Bank Kenya Ltd [2019] eKLR, submitting that, assuming that the Deputy Registrar was correct in certifying the period of delay, any failure thereafter to collect the proceedings promptly was attributable to counsel and should not be visited upon the applicant. Further reliance is placed on Vishwa Stone Suppliers Co. Ltd v RSR Stone [2006] Ltd [2020] KECA 361 (KLR) for the principle that, in an application for extension of time, an applicant need only demonstrate that the intended appeal raises arguable issues and not that it will necessarily succeed. Accordingly, the applicant urges the Court to allow the application. 9.I have considered the affidavits and submissions filed by the parties. The principles governing the exercise of this Court's discretion under rule 4 are now well settled. The discretion is unfettered, though it must be exercised judicially and on sound legal principles. In determining whether to enlarge time, the Court considers, among other factors, the length of the delay, the explanation for the delay, the possible chances of the intended appeal succeeding, and the degree of prejudice likely to be occasioned to the respondent. These considerations are not exhaustive, and no single factor is decisive. Rather, the Court must consider the circumstances of each case with a view to attaining a just outcome. See Leo Sila Mutiso vs Rose Hellen Wangari Mwangi, (supra). 10.The first consideration is the length of the delay. The impugned judgment was delivered on 13th June 2024, whereupon the applicant lodged a notice of appeal on 27th June 2024 and requested certified copies of the proceedings. A Certificate of Delay dated 8th April 2025 certified that the period required for the preparation and supply of the certified copies of the proceedings ran from 26th June 2024 to 11th November 2024. The applicant, however, contends that the proceedings were not actually collected until 19th February 2025, and that the Certificate of Delay ought to have reflected that latter date. Proceeding on the basis of the Certificate of Delay dated 8th April 2025, the record of appeal ought to have been lodged by about 10ᵗʰ January 2025.Since the present application was not filed until 23ʳᵈ June 2025, and no record of appeal had by then been lodged, the delay was approximately five months. 11.The more pertinent issue is whether the delay has been satisfactorily explained. The applicant attributes the delay to the fact that, although the trial court notified counsel on 11th November 2024 that the proceedings were ready, the notification was transmitted to info@CMS-DI.com instead of the email addresses through which counsel had consistently corresponded with the court, namely Litigation@CMS-DI.COM and Victor.Mungai@CMS-DI.COM. Consequently, the applicant states that it only became aware that the proceedings were ready after being served with the 1st respondent's application under rule 5(2)(b) of the Rules of this Court in Civil Appeal (Application) No. E711 of 2024, following which it made inquiries and collected the proceedings on 19th February 2025. It thereafter obtained a Certificate of Delay on 8th April 2025 and sought its amendment, a request that was declined by the Deputy Registrar on 15th April 2025. 12.The 2nd respondent contends that this explanation is unsatisfactory because the notification was sent to an email address belonging to the applicant's advocates and that the management of the firm's email addresses was an internal administrative matter for which neither the Court nor the respondents should bear responsibility. It is further contended that the Certificate of Delay conclusively certified the period to be excluded and that there was therefore no basis for extending time. 13.I have carefully considered those rival positions. It is not disputed that the trial court transmitted the notification that the proceedings were ready on 11ᵗʰ November 2024 to info@CMS- DI.com, an email address belonging to the applicant's advocates. It is also not disputed that the applicant's advocates had consistently used Litigation@CMS-DI.COM and Victor.Mungai@CMS-DI.COM in their correspondence with the court. While I accept that the internal administration and monitoring of counsel's email addresses falls within the responsibility of the applicant's advocates, I do not consider that lapse, viewed in isolation, sufficient to defeat the application. Whether the explanation ultimately warrants the exercise of the Court's discretion must be assessed against the entirety of the chronology and not in isolation. 14.Although the applicant has offered an explanation for its failure to lodge the record of appeal up to 15ᵗʰ April 2025 when the Deputy Registrar declined its request to amend the Certificate of Delay, the explanation does not account for the entire period of delay. The material before me shows that, upon learning on 19th February 2025 that the proceedings were ready, the applicant collected them, obtained a Certificate of Delay on 8th April 2025, and sought to have it amended, a request that was declined on 15th April 2025. However, no specific explanation has been offered for the period between 15th April 2025 and 23rd June 2025, when the present application was lodged. The applicant merely states that the application was filed promptly following the Deputy Registrar's refusal. Although that unexplained period cannot be said to be insignificant, I am nevertheless satisfied that, viewed in the context of the entire chronology of events and the circumstances giving rise to the delay, it is not so inordinate as to warrant declining the exercise of this Court's discretion. It is unnecessary for me, for purposes of this application, to determine whether the Deputy Registrar correctly declined to amend the Certificate of Delay. The question before me is whether the explanation advanced by the applicant, viewed in its totality, is sufficiently reasonable to justify an extension of time. In the circumstances, I am satisfied that it is. 15.As regards the prospects of the intended appeal, this Court has consistently held that it is neither necessary nor appropriate, in an application under rule 4, to make definitive pronouncements on the merits of the intended appeal. It is sufficient if the appeal is not frivolous. The applicant intends to challenge, among other things, the refusal by the trial court to grant an order of specific performance and the consequential reliefs granted to the 1st respondent. Without expressing any concluded view on the merits, I am not persuaded that the intended appeal is plainly devoid of arguable grounds. 16.Finally, on prejudice, the 2nd respondent has not demonstrated that it will suffer any prejudice incapable of being compensated by an award of costs if the extension sought is granted. On the other hand, refusal of the application would deny the applicant the opportunity to ventilate its intended appeal. In balancing the competing interests of the parties, I am satisfied that the scales tilt in favour of allowing the intended appeal to be determined on its merits. 17.Taking into account the length of the delay, the explanation offered, the arguability of the intended appeal, and the absence of undue prejudice to the respondents, I am inclined to exercise my discretion in favour of the applicant. 18.Accordingly, I allow the Notice of Motion dated 23ʳᵈ June 2025.The applicant is hereby granted thirty (30) days from the date of this ruling to lodge and serve the record of appeal. The costs of the application shall abide the outcome of the intended appeal. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY 2026.D. K. MUSINGA...............................JUDGE OF APPEALI certify that this is a true copy of the original.Signed DEPUTY REGISTRAR.