Moiz Motors Limited & another v Vallerian Karani & another

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUSIA** **CIVIL APPEAL NO E007 OF 2026** **MOIZ MOTORS LIMITED…………………………………………1ST APPELLANT** **AZAN MOTORS LIMITED…………………………………..…….2ND APPELLANT** **VERSUS** **VALLERIAN KARANI……………………………………………..1ST RESPONDENT** **LUCY AYITSI SAUNYA…………………………………………..2ND RESPONDENT** **(Being an Appeal against the Judgment of Hon E.A Nyaloti delivered on 8th June 2023 in Busia MCCC No E036 of 2023)** **RULING** **INTRODUCTION** 1. In their Notice of Motion application dated 26th January 2026 and filed on 28th January 2026, brought under Article 47 and 159(2)(d) of the Constitution of Kenya, 2010, Sections 1A, 3, 3A and 79G of the Civil Procedure Act, Order 50(6) and Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of law, the Appellants herein sought for an order that this court be pleased to enlarge the time within which they may appeal against the Judgment entered on 8th June 2023. They also sought for leave to file and prosecute the appeal out of time. 2. Nicholus Ngoli Inyangala, the Operations Manager of the 1st and 2nd Appellants, swore an affidavit in support of the said application on 27th January 2026. 3. He averred that the Appellants were aggrieved by the Judgment of Hon E.A. Nyaloti dated 8th June 2023 in **MCCC No E036 of 2023** and intended to appeal against it. He asserted that the said Judgment was delivered without proper evaluation of the evidence on record, resulting in grave miscarriage of justice against the Appellants. 4. He contended that the Appellants had an arguable appeal raising serious and triable issues particularly on the burden on the 1st Respondent to prove agency relationship, contractual obligations and proprietary rights. 5. He was categorical that the delay in filing the appeal was not inordinate, deliberate or contumelious but was occasioned by the mistake, inadvertence and/or omission of previous counsel who had been on record. 6. He further asserted that the mistakes of counsel should not be visited upon an innocent litigant. He pointed out that the Appellants were unable to lodge an appeal within the statutory period due to the unavailability of certified copies of proceedings and pleadings which are essential for preparation of a competent record of appeal. 7. He was categorical that the pleadings were not on the CTS and the current advocates on record could not retrieve these essential pleadings from either the CTS or the previous counsels on record in preparation for the Record of Appeal. 8. He explained that the 1st Appellant being the authorised agent of the 2nd Appellant, entered into a Hire Purchase Agreement made on 7th May 2021 with the 1st Respondent for the sale and purchase of Motor vehicle registration number KDC 559P for the purchase price of Kshs 3,100,000/=. He added that the 1st Respondent paid a deposit of Kshs 800,000/= upon execution of the Hire Purchase Agreement dated 7th May 2021 and immediately took possession of the aforesaid motor vehicle and that under the aforesaid Agreement, the 1st Respondent was to pay the balance of Kshs 2,300,000/= in monthly instalments of Kshs 95,833/= for twenty-four (24) months. 9. He was emphatic that the 1st Respondent claimed that the outstanding balance was Kshs 1,100,000/= knowing for a fact that the monies were paid into Account No 011091306800 belonging to the 2nd Respondent and not the Appellants. He asserted that there was no employer-employee or agency relationship between the Appellants and the 2nd Respondent. He argued that the 1st Respondent did not adduce any kind of evidence to show the agency relationship between the Applicants and the 2nd Respondent. 10. He further stated that the Appellants had filed this application without delay and had a good and arguable appeal as per the Memorandum of the Appeal filed herein. He added that the Appellants have demonstrated sufficient cause within the meaning of Section 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules to warrant enlargement of time. 11. He argued that the intended appeal was not frivolous and had overwhelming chances of success and that unless leave was granted, the Appellants would suffer grave and irreparable prejudice whereas the Respondents would not suffer any prejudice. He was emphatic that it was in the interest of justice, fairness and equity that the Appellants be accorded an opportunity to ventilate their appeal on merit. 12. As at the writing of this Ruling, no response had been filed by the Respondents herein. Additionally, none of the parties had filed their written submissions. This Ruling was, therefore, based on the Appellant’s affidavit evidence only. **LEGAL ANALYSIS AND DETERMINATION** 1. Indeed, in exercising its discretion to allow an application seeking extension to file an appeal out of time, a court had to be satisfied that the omission to file the same within time was excusable. In other words, there had to be a plausible explanation for the delay in filing the appeal. 2. It was apparent from the court record that the decision the Applicant intended to appeal against was delivered on 8th June 2023. The present application was filed on 28th January 2026. About two (2) years, seven (7) months and twenty (20) days had since passed. This was an inordinately long period. A delay of over one (1) year was inordinate and/or unreasonable. 3. Going further, the Appellants blamed their previous Advocate for the delay. They argued that the delay was caused by the mistake, inadvertence and/or omission of previous counsel. They added that they were unable to lodge the appeal on time due to unavailability of certified copies of proceedings and pleadings. They asserted that the pleadings were not available on the CTS and the current Advocate could not retrieve the same from CTS and/or from the previous Advocate. 4. This court noted that the Appellants did not prove this allegation as they did not attach any evidence to show that they had requested the court to avail the said certified copies of proceedings and pleadings and the same were not availed within reasonable time to enable them to have filed a Record of Appeal within the time stipulated in Section 79G of the Civil Procedure Act**.** This was inexcusable. 5. Having said so, every party has a right to access any court or tribunal to have its dispute heard and determined in accordance with Article 50(1) of the Constitution of Kenya, 2010. Even where a party delays in doing an act, there is always a provision that would give it reprieve to seek justice. 6. Notably, Order 50 Rule 6 of Civil Procedure Rules, 2010 empowers the court to enlarge the time to do a particular act. The said Order 50 Rule 6 of Civil Procedure Rules stipulates as follows:- “**Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:** **Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise”.** 1. Against this backdrop, this court, therefore, perused the Memorandum of Appeal dated 26th January 2026 and filed on 28th January 2026. It did not, however, consider the merits or otherwise of the grounds of appeal that were set out therein as that was strictly under the purview of the appellate court. All that it was expected to do was to consider if the Appellants herein had demonstrated that they had arguable grounds of appeal. 2. The grounds in the Appellants’ draft Memorandum of Appeal showed that they were aggrieved by the Trial Court’s decision regarding distribution of the deceased’s estate. He sought that the appellate court determine if the Trial Court erred in law and in fact by declaring that the outstanding balance payable was Kshs 1,100,000/= without any legal or evidentiary basis and holding that the 2nd Respondent was an agent of the Appellants in the absence of any written agency agreement. These were arguable points of law. 3. While considering whether or not to grant an order for extension to do any act, the court was also required to consider if the opposing side would suffer any prejudice if extension of time was granted. This court did not see any prejudice that the 1st and 2nd Respondents would suffer or were likely to suffer if the Appellants herein exercised their constitutional right of appeal. If there was any prejudice, then they did not demonstrate the same. 4. Taking all the factors hereinabove into account, it was the considered view of this court that that it was **in the interests of justice** (emphasis court) that the Appellants be given an opportunity to have their Appeal heard on merit as they would suffer prejudice if they are denied an opportunity to fully present their Appeal to be heard on merit. 5. Indeed, the power to grant orders **in the interest of justice and/or for the ends of justice** (emphasis court) is well captured in Section 3A of the Civil Procedure Act that states that: - **“Nothing in the Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice** (emphasis court) **or to prevent abuse of the process of the court.”** **DISPOSITION** 1. For the foregoing reasons, the upshot of this court’s decision was that the Appellants’ Notice of Motion application dated 26th January 2026 and filed 28th January 2026 was merited and the same be and is hereby allowed in terms of Prayer No (2) and (3) therein on the following conditions: - 2. **THAT the Appellants’ Memorandum of Appeal dated 26th January 2026 and filed on 28th January 2026 be and is hereby allowed as filed.** 3. **THAT the Appellants be and are hereby directed to file and serve their Record of Appeal in the appropriate file within one hundred and twenty (120) days from the date of this Ruling.** 4. **THAT this matter will be mentioned on 23RD November 2026 to confirm compliance of the order in Paragraph 24(ii) hereinabove and/or for further orders and/or directions.** 5. **Costs of the application herein will be in the cause.** Orders accordingly. **DATED** and **DELIVERED** at **BUSIA** On this **23rd day** of **July** 2026 **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **S. MOHOCHI** **JUDGE**