https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1081

Panner Seed (K) Ltd v Gorgar Farm Ltd (Civil Application E005 of 2026) [2026] KECA 1081 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KECA 1081 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Application E005 of 2026 JM Mativo, JA June 3, 2026 Between Panner Seed (K) Limited Applicant and Gorgar Farm Limited Respondent (Being an application for extension of time within which to file the memorandum and record of appeal from the judgment of the High Court of Kenya at Nakuru (R. Ngetich, J.) dated 20th July 2023inCivil Case No. 5 of 2017 Civil Suit 5 of 2017 ) Ruling 1.Vide an application dated 19th December 2025, the applicant prays for leave to file memorandum of appeal and a record of appeal out of time against the judgment delivered by Ngetich, J. on 20th July 2023 in Nakuru High Court Civil Case No. 5 of 2017. The applicant also prays for an order that the record of appeal be deemed as properly filed. Lastly, the applicant prays for costs of the application to be provided for. The application is brought under Rule 4 of the Court of Appeal Rules 2022. 2.The grounds in support of the application are that the applicant is aggrieved by the said judgment and it filed a notice of appeal on 2nd August 2023, that the time for filing the memorandum of appeal has since lapsed due to administrative delays in obtaining certified copies of the proceedings from the trial court’s registry, that the applicant has an arguable appeal and that the application has been filed with delay. 3.The applicant filed an undated further affidavit sworn by Jane Gachuiga advocate stating that: (a) she paid Kshs.2000/- for the proceedings on 2nd August 2023; (b) upon receiving the proceedings, she realized that they had numerous errors; (c) that she wrote to the court asking that the proceedings be corrected but she never received a response; (d) she opted to file the instant application; (e) they collected a certified copy of the judgment in December 2025 but they were not supplied with the proceedings; (f) the foregoing demonstrates their eagerness to file the appeal. 4.In response to the application, the respondent filed the replying affidavit dated 29th January 2026 sworn by Hamish Grant, its Managing Director. The salient averments are: (a) the application is devoid of merit; (b) the timelines set out by the law serve a salutary purpose; (c) the discretion to extend time can only be exercised where sufficient reason (s) has been provided; (d) the notice of appeal was filed on 2nd August 2023; (e) on 7th October 2025 the Deputy Registrar notified the parties that the proceedings were ready for collection; (e) even though the letter forwarding the proceedings was addressed to the applicant’s counsel, the respondent’s counsel forwarded the proceedings to the applicant’s counsel, and, (f) there is no reason why the applicant did not file the record of appeal within the stipulated period. 5.In support of the application filed submissions dated 9th February 2026 in which it cited Vishva Stone Supplies Company Limited v RSR Stone [2006] Ltd [2020] KECA 361 (KLR) to urge inter alia that there is no limit as to the factors the Court can consider so long as they are relevant to the issues under consideration and argued that the applicant enumerated the sequence of events which contributed to the delay. The applicant relied on Njoroge vs. Kimani [2022] KECA 118 (KLR) in support of the proposition that the Court must be appraised of all the circumstances relating to the delay. Lastly, the respondent maintained that no prejudice will be occasioned to the respondent. 6.In opposition to the application, the respondent filed submissions dated 6th February 2026 essentially urging that the application is unmerited citing the Supreme Court decision in Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR. The respondent maintained that the applicant has not shown good cause as was stated in Diplack Kenya Ltd vs. William Muthama Kitonyi [2018] eKLR and even assuming that there was justification for the delay, the applicant has not obtained a valid certificate of delay as was held in Alex Njue Kithangari and 4 Others vs. Benson Gichohi Mutahi [2024] eKLR. 7.I have considered the application, the affidavit in support thereto and its annextures, the replying affidavit and the parties’ submissions. Rule 4 provides that:“The Court may, on such terms as it thinks just, by order extend the time limited by these Rules or by any decision of the Court or of a Superior Court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.” 8.The Supreme Court in Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR summed up the applicable considerations as follows:i.Extension of time is not right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;ii.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court;iii.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case- to-case basis;iv.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;v.Whether there will be any prejudice suffered by the respondents if the extension is granted;vi.Whether the application has been brought without undue delay; and,vii.Whether in certain cases, like election petitions, public interest should be a consideration for extending time. 9.A plausible, reasonable, and comprehensive explanation for the delay is a crucial, though not sole, factor that triggers the Court's discretion to grant extension of time to file an appeal. Courts operate on the principle that if there is no reasonable explanation, the indulgence will generally not be granted even if there are prospects of success. An applicant must provide a "good cause" or "sufficient cause," which means a full and reasonable explanation that covers the entire period of the delay. A vague or incomplete explanation will not trigger the discretion to condone. I must emphasize that condonation is not a right, and that "hard-earned judgments" should not be lightly disturbed. A party must show a valid reason for the laxity. The investigation into the reasonableness of the delay is a factual enquiry. However, once a "plausible explanation", is found to exist, it enables courts to look at other factors, like prospects of success so as to exercise its discretion. 10.To be deemed "plausible" to trigger the Court's discretion, the applicant generally must show: (a) that the delay was not due to negligent inaction. The delay must be accounted for by factors beyond the applicant's control (e.g., waiting for transcripts, severe illness or genuine attorney negligence, though the latter is viewed critically). (b) It must cover the entire period. Explaining only part of the period of delay is "far from satisfactory" and most likely, it will not justify the extension. (c) the reason must not be "fictitious" or "calculated" delay the case. The Court requires honesty in the explanation. 11.The guiding threshold is clearly set out in Rule 4 which is “on such terms as may be just” which means the standard is the "interests of justice," which requires balancing the explanation for the delay, the prospects of success, the importance of the case and prejudice to the parties. A plausible explanation, however, is the "key that unlocks the door" to this balancing exercise. If the explanation for the delay is not plausible (i.e., it is weak, contradictory or non- existent), the Court usually will not exercise its discretion to extend time even if the appeal has merit. A good explanation for a long delay is often needed to satisfy the "good cause" requirement. 12.I have looked at the reasons provided by the applicant highlighted earlier. There is an uncontroverted assertion by the respondent that on 7th October 2025 the Deputy Registrar notified the parties that the proceedings were ready for collection. The applicant claims that the typed proceedings contained numerous clerical mistakes which necessitated correction. Even if I were to be magnanimous enough to accept that the delay was occasioned by the registry, the applicant did not obtain a certificate of delay, which is an official document issued by the Registrar of the High Court (or lower court) certifying the exact period it took the registry to prepare and supply the certified typed proceedings and judgment to the appellant. Its primary purpose is to act as a statutory "stopwatch pauser" to save an appellant's notice of appeal from dying a natural death, shifting the blame for delay from the litigant to the institutional machinery of the judiciary. 13.Under Rule 85 (1) of the Court of Appeal Rules, 2022, an appellant has a strict 60-day window from the date of filing the notice of appeal to institute the formal appeal. However, Rule 85 (2) provides an explicit proviso: the time required to prepare and certify the trial court proceedings is excluded from that 60-day calculation, provided that the appellant has applied for the proceedings in writing and a certificate of delay is obtained. If the 60 days did lapse and an intending appellant is forced to apply for extension of time under Rule 4, as in this case, the certificate of delay serves as conclusive, independent evidence. 14.If an appellant fails to obtain a certificate of delay, the consequences are severe, fatal and procedural in nature. Without this document, the statutory clock monitoring the appeal never pauses. The Court treats any time spent waiting for the court registry to type the proceedings as the applicant’s unexcused delay. The immediate legal and procedural consequences under Rule 85 of the Court of Appeal Rules, 2022 include the following:(a)the notice of appeal "Dies a Natural Death." Under Rule 85 (1) an applicant has exactly 60 days from the date he/she filed the notice of appeal to file your full record of appeal. (See Mae Properties Limited vs. Kibe & Ano. KECA 238 (KLR). Without a certificate of delay to officially pause the clock, day 61 marked the automatic legal expiration of the applicant’s notice of appeal. The notice of appeal was deemed as withdrawn by operation of law. (See John Mutai Mwangi & 26 Others vs. Mwenja Ngure & 4 Others KECA 655 (KLR)). It instantly ceased to exist as a valid legal instrument. (b) Once the 60-day window lapsed without a certificate of delay, there was no longer a valid intended appeal before the Court. By now it is manifestly clear that absence of the certificate of delay is fatal to the application before me. On this ground alone, this application collapses. 15.Having concluded as herein above, it will serve not salutary purpose for me to consider the other grounds. Perhaps, it will suffice for me in summation to state that the explanation for the delay is not plausible. Accordingly, I dismiss the application dated 19th December 2025 with costs to the respondent. DATED AND DELIVERED AT NAKURU THIS 3RD DAY OF JUNE, 2026.J. MATIVO...............................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR