https://new.kenyalaw.org/akn/ke/judgment/keca/2026/982

National Bank of Kenya Ltd v D Ethics and Anti-Corruption Commission & 5 others; Waterfront Outlets Ltd & another (Interested Parties) (Civil Application E472 of 2025) [2026] KECA 982 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 982 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E472 of 2025 Katwa Kigen, JA May 15, 2026 Between National Bank of Kenya Ltd Applicant and D Ethics and Anti-Corruption Commission 1st Respondent Nicholas Owino Ochiel 2nd Respondent Violet Terry Muthoni Maina 3rd Respondent Ternic Valuers Ltd 4th Respondent Ternice Enterprises Ltd 5th Respondent Richard Omondi Ochiel 6th Respondent and Waterfront Outlets Ltd Interested Party National Bank of Kenya Ltd Interested Party (Being an application for extension of time to file an appeal and for the Memorandum and Record of Appeal dated 2nd October 2024 and 3rd June 2025 respectively to be deemed duly filed, arising from the Ruling and Order of Prof. (Dr) N. W Sifuna, J. delivered on 25th September 2024 in NRB HCACECS No. E024 of 2022) Ruling 1.Before me is an application dated 17th June 2025, brought under Section 3A(1) and (2) of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya, and Rules 4, 5(2)(b), 43, 44 and 49 of the Court of Appeal Rules, 2022, seeking on the main an order for extension of time within which to file an appeal against the Ruling and Order of Prof. (Dr) N. W Sifuna J. delivered on 25th September 2024 in Nairobi HCACECS No. E024 of 2022. The application further prays that the Applicant’s Memorandum of Appeal dated 2nd October 2024 and Record of Appeal dated 3rd June 2025 be deemed as duly filed and properly on record. 2.The application is grounded on the reasons set out on the face of the motion and those contained in the Supporting Affidavit of James Rimui, Advocate, sworn on 17th June 2025. In summary, the Applicant contends that the impugned ruling dismissed its application dated 29th January 2024, wherein it had sought to exclude certain charged properties—namely L.R. No. 9363/142, L.R. No. 9363/143, L.R. No. 12778/263, L.R. No. 13330/601 (Thome Estate), and L.R. No. 7978/27 (Plot No. 25 Mirema) - from forfeiture proceedings initiated by the 1st Respondent. The learned Judge held that the Applicant, as chargee, lacked locus standi to defend forfeiture of the charged properties and consequently struck out the Applicant from the suit. 3.The Applicant asserts that it holds a bona fide registered legal interest in the charged properties, having advanced loan facilities to the 2nd and 4th Respondents prior to institution of the suit. It argues that unless allowed to participate in the proceedings, its substantive rights will be defeated and it will suffer irreparable prejudice, as it has no other means of recovering the outstanding loan amounts. The delay in filing the appeal is explained by the fact that although a Notice of Appeal was lodged on 2nd October 2024 and a request for certified copies of the ruling and proceedings made on the same date, the Certificate of Delay was only issued on 30th May 2025 due to administrative lapses at the High Court registry. Upon receipt thereof, the Applicant promptly finalized its Memorandum and Record of Appeal. 4.The Applicant maintains that it has acted diligently and in good faith, that the intended appeal raises serious legal issues, and that no prejudice will be suffered by the Respondents that cannot be compensated by costs. It therefore urges the Court to treat the matter as urgent and to exercise its discretion in favour of granting the extension sought. 5.There is no response from the respondents on the application hence I consider the same to be unopposed. 6.The Applicant further relied on its written submissions dated 17th September 2025, wherein it reiterated that the delay in lodging the appeal was occasioned solely by administrative lapses at the High Court registry. It emphasized that a formal request for certified copies of the proceedings was made on 2nd October 2024, within the statutory period, but the Certificate of Delay was only issued on 30th May 2025. The Applicant argued that this delay was beyond its control and substantiated the position by exhibiting the Certificate of Delay. In support, the Applicant cited authorities including Karua v Judicial Service Commission [2024] KECA 156 (KLR), Daniel Nganga Kanyi v Sosphinaf Company Ltd [2005] KECA 123 (KLR), and Njoroge v Kimani [2022] KECA 1188 (KLR), all affirming that a certificate of delay is prima facie evidence excusing late filing. It further relied on Nicholas Arap Korir Salat v IEBC & 7 Others [2014] eKLR, Fakir Mohamed v Joseph Mugambi [2005] KECA 340 (KLR), and Leo Sila Mutiso v Rose Hellen Wangari Mwangi (Civil Application Nai. 251 of 1997), underscoring that extension of time is discretionary and guided by length of delay, reasons advanced, prospects of success, and prejudice to the respondent. The Applicant submitted that the delay was neither deliberate nor inordinate, that the intended appeal raises arguable issues, and that no prejudice would be suffered by the Respondents who had already been served with the Notice of Appeal. It invoked Article 159(2)(d) ofthe Constitution and Sections 3A and 3B of the Appellate Jurisdiction Act, urging the Court to exercise its discretion in favour of substantive justice. 7.I have carefully considered the Notice of Motion dated 17th June 2025, the affidavits in support thereof, and the written submissions of counsel. The discretion vested in this Court under Rule 4 of the Court of Appeal Rules, 2022 is wide and unfettered. It is not dependent upon demonstration of “sufficient reasons” in a rigid sense, but must be exercised judiciously and in accordance with established principles. 8.The principles governing extension of time are now settled. Rule 4 of the Court of Appeal Rules, 2022 vests in this Court unfettered discretion to extend time, provided sufficient cause is shown. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court emphasized that extension of time is not a right but an equitable remedy available to a deserving party at the discretion of the Court. The Court outlined guiding principles, including: the length of delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent. 9.Similarly, in Leo Sila Mutiso v Rose Hellen Wangari Mwangi Civil Application No. Nai 251 of 1997, this Court reiterated that in exercising discretion, the Court considers the length of delay, reasons for delay, prospects of success, and prejudice to the respondent. The same position was restated in Fakir Mohamed v Joseph Mugambi & 2 Others [2005] KECA 340 (KLR). 10.Applying the foregoing principles to the present application, I note first that the delay complained of is not inordinate. The ruling was delivered on 25th September 2024, the Notice of Appeal was lodged on 2nd October 2024, and a request for certified copies of the proceedings was made on the same date. The Certificate of Delay was eventually issued on 30th May 2025, confirming that the period between 2nd October 2024 and 3rd April 2025 was consumed in preparation and delivery of the proceedings. That period is excluded from computation of time under Rule 84 of the Court of Appeal Rules. The Applicant thereafter finalized its Memorandum of Appeal and Record of Appeal promptly on 2nd October 2024 and 3rd June 2025 respectively. 11.The explanation for delay is therefore satisfactory. As held in Daniel Nganga Kanyi v Sosphinaf Company Ltd & Another [2005] KECA 123 (KLR), and reaffirmed in Njoroge v Kimani [2022] KECA 1188 (KLR), a Certificate of Delay issued by the Registrar is prima facie evidence excusing late filing, unless cogent reasons are advanced to challenge it. No such challenge has been raised in this matter. 12.Secondly, the Applicant has demonstrated diligence. It acted within time to lodge the Notice of Appeal and request proceedings, and has exhibited the relevant correspondence and Certificate of Delay. This distinguishes the case from situations where parties sleep on their rights and later seek indulgence. As observed in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, extension of time is an equitable remedy available only to a deserving party. The Applicant herein has shown good faith and diligence. 13.Thirdly, the intended appeal raises arguable issues. The question whether a chargee has locus standi to defend forfeiture of charged properties is not frivolous. It implicates substantive property rights and the scope of participation of secured creditors in forfeiture proceedings under the Anti-Corruption and Economic Crimes framework. This Court has consistently held that arguability of the appeal is a relevant consideration in extension of time applications: see Leo Sila Mutiso v Rose Hellen Wangari Mwangi Civil Application Nai. 251 of 1997. 14.Fourthly, no prejudice has been demonstrated by the Respondents. They were duly served with the Notice of Appeal and have been anticipating the appeal. Any prejudice can be compensated by costs. In fact, the Respondents have not filed any response to the application, and I therefore consider the motion unopposed. 15.Finally, Sections 3A and 3B of the Appellate Jurisdiction Act enjoin this Court to facilitate the just, expeditious, proportionate, and affordable resolution of disputes. Article 159(2)(d) ofthe Constitution requires that justice be administered without undue regard to procedural technicalities. To deny the Applicant audience on account of administrative lapses at the registry would be to elevate form over substance and to defeat the overriding objective. As this Court observed in Fakir Mohamed v Joseph Mugambi & 2 Others Civil Application Nai. 332 of 2004, discretion must be exercised in a manner that advances the ends of justice. 16.In the premises, I am satisfied that the Applicant has provided a reasonable and satisfactory explanation for the delay, that the intended appeal raises arguable issues, and that no prejudice will be suffered by the Respondents. The Notice of Motion dated 17th June 2025 is accordingly allowed. The time within which to file the appeal is extended, and the Applicant’s Memorandum of Appeal dated 2nd October 2024 and Record of Appeal dated 3rd June 2025 are deemed duly filed and properly on record. 17.Costs shall be in the cause. 18.It is so ordered. DATED AND DELIVERED AT NAIROBI ON THIS 15TH DAY OF MAY, 2026.KATWA KIGEN K. J.......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR