Musundi v Bental Services Ltd (Commercial Appeal E130 of 2023) [2026] KEHC 8628 (KLR) (Commercial and Tax) (18 June 2026) (Ruling)

**THE REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL AND TAX DIVISION** **COMMERCIAL APPEAL NO. E130 OF 2023** **BETWEEN** **PHILIP MATANDA MUSUNDI....................................APPLICANT** **AND** **BENTAL SERVICES LIMITED…..............................RESPONDENT** **RULING** 1. By a Notice of Motion dated 8th December, 2025, the Applicant seeks the leave of this Court to file his Notice of Appeal, Memorandum of Appeal, and Record of Appeal out of time against the judgment delivered on 7th November, 2025, by this court (*Mwangi, J.*). The Applicant further, prays that the annexed Notice of Appeal be deemed as duly filed and that costs of the application be provided for. 2. The application is premised on the grounds on its face and is supported by the Applicant’s supporting affidavit, sworn on 8th December, 2025, and further affidavit sworn on 3rd February, 2026. The Applicant avers that he had initially lodged an appeal from the decision of the trial court in *CMCC No. 7388 of 2015* which application sought to set aside *ex parte* judgment but was dismissed by the Court on 7th November, 2025. Being dissatisfied with the outcome, he now seeks to challenge it before the Court of Appeal. 3. The Applicant attributes the delay in filing the Notice of Appeal to a communication breakdown between himself and his advocates, asserting that the advocates could not have acted without his express written instructions. He acknowledges that the statutory timelines have lapsed, hence the need to file the present application. He further states that Philip Matanda Musundi and Philip K. Musundi refer to one and the same person. 4. The Applicant urges the Court to exercise its discretion in his favour on the grounds that the intended appeal is arguable, the Respondent may proceed to execute thereby render the appeal nugatory, the delay is not inordinate, and that he stands to suffer prejudice if the orders are not granted finally, he urges that it is in the interest of justice that the application is allowed. 5. The application is opposed through the replying affidavit of Henry Tanui, sworn on 14th January, 2026. The Respondent urges this Court to dismiss the application with costs for the following reasons: the Applicant lacks *locus standi*, as he is not a party to the proceedings giving rise to the judgment sought to be appealed against, and therefore lacks the *locus standi* to file the present application rendering the application fatally defective. Secondly, that this Court lacks jurisdiction to grant leave to file a Memorandum and Record of Appeal out of time to the Court of Appeal, arguing that the power under Section 7 of the Appellate Jurisdiction Act is limited strictly to extension of time for filing a Notice of Appeal. 6. Thirdly, the Respondent further asserts that the delay has not been satisfactorily explained. That the impugned judgment was delivered in the presence of both parties, hence, the Applicant was cognizant of the timelines to file appeal. He further states that, the alleged communication breakdown is said to be vague, unsubstantiated and insufficient to warrant the exercise of the court’s discretion. That no explanation was advanced on the nature of the communication breakdown. In any event, he argues that the Applicant appointed the same advocates as there was no change of advocates so that nothing stopped them from filing an appeal in the intervening period pending instructions. 7. The Respondent prayed that the application be dismissed as no reasons were explained for the inordinate delay, and that the Respondent stands to suffer prejudice for being condemned to continue with unending litigation. 8. The application was canvassed by way of written submissions. Both parties filed written submissions. The Applicant relied on Section 7 of the Appellate Jurisdiction Act and the decision in ***Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 others*** ***[2014] eKLR*** urging the court to exercise its discretion in his favour. 9. The Respondent maintained that jurisdiction under Section 7 of the Appellate Jurisdiction Act is limited as it does not grant this Court the jurisdiction to determine the present application. Reliance was placed in the case of ***Wambua vs. Syengo & 3 others*** ***[2023] KEELC 17002 (KLR)*** to argue that only extension of time for filing a Notice of Appeal is permissible. It further contended that the Applicant failed to meet the established threshold for extension of time as espoused in the case of ***Salat vs. Independent Electoral & Boundaries Commission & 7 others*** **[2014] KESC 12 (KLR**) and ***Anti-Counterfeit Authority vs. Francis John Wanyange & 5 others*** ***[2021] KECA 381 (KLR).*** The Respondent reiterated the contents of its response praying that the application be dismissed with costs. He also cited several decisions that dismissed applications of this nature on grounds of unreasonable delay. 10. I have considered the application, the affidavits as well as the submissions, examined the Record of Appeal and analyzed the law. The Applicant seeks leave of this Court to file his Notice of Appeal, Memorandum of Appeal and Record of Appeal out of time. The starting point is the jurisdiction of the Appellate Jurisdiction Act. Section 7 of the Act provides: **“The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired:** **Provided that in the case of a sentence of death no extension of time shall be granted after the issue of the warrant for the execution of that sentence.”** 1. The Respondent urged this Court to find that based on the decision in ***Wambua vs. Syengo & 3 others*** **(*Supra*),** this Court lacked jurisdiction to grant leave to file the Notice of Appeal, Memorandum of Appeal and Record of Appeal. That decision, set out and adopted the reasoning of the decision of the High Court in ***Loise Chemutai Ngurule & Another vs. Winfred Leshwari Kimung’en & 2 Others*** ***[2015] eKLR ,*** that held as follows:- ***“It will be seen from the above that Section 7 is explicit, that the High Court (which now in light of***[***the Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***of Kenya, 2010 needs to be construed as also including the Environment and Land Court and the Industrial Court), may extend time for giving notice of intention to appeal from a judgment of the High Court. The intention to appeal is the Notice of Appeal. I think Section 7 does not need any more than a literal interpretation. Jurisdiction is clearly conferred to the High Court to extend time for the filing of a Notice of Appeal. To decide otherwise is akin to completely disregarding, what in my view, is a clear provision in the law.”*** 1. Drawing inference from the above, I find that Section 7 of the Appellate Jurisdiction Act remains applicable as far it expressly confers jurisdiction upon this Court to extend time only in respect of the Notice of Appeal. It does not extend to the filing of a Memorandum or Record of Appeal which fall within the exclusive purview of the Court of Appeal. 2. Consequently, to the extent that the application seeks leave to file a Memorandum and Record of Appeal out of time, this Court lacks jurisdiction, and that limb of the application is incompetent. 3. As to whether the Applicant has *locus standi*, this Court is cognizant of the fact that the impugned judgment was rendered against Philip K. Musundi, while the present application has been brought by a person describing himself as Philip Matanda Musundi. Although the Applicant annexed a copy of his identification card in an attempt to demonstrate that the two names refer to one and the same individual, no sufficient material has been placed before the Court to establish the nexus with certainty. The discrepancy in names is not trivial, as it goes to the very question of legal standing. 4. In the absence of cogent evidence demonstrating that the Applicant is indeed the party affected by the impugned judgment, I find that the Applicant has failed to establish locus standi. On that basis alone, the application is rendered incompetent 5. Be that as it may, even if I were to consider the merits of the application, the Applicant explained that the delay was occasioned by a communication breakdown. However, no reasons were advanced as to enunciate the circumstances leading to the communication breakdown. This explanation is wholly generic and lacks specificity. No details have been provided as to when the breakdown occurred, and what efforts, if any, were made to restore communication. 6. It is noteworthy that the Applicant was represented by counsel who were present when judgment was delivered. No explanation has been offered as to why the advocates failed to act within the prescribed timelines. Courts have consistently held that discretion cannot be exercised on the basis of vague and unsubstantiated explanations. A party seeking equitable relief must place before the Court clear, candid, and sufficient material to justify the exercise of discretion. 7. For these reasons, I am not persuaded that the Applicant is deserving of the exercise of discretion in his favor for reasons that; this Court lacks jurisdiction to grant leave to file a Memorandum and Record of Appeal out of time; the Applicant has failed to establish locus standi, and failed to provide a satisfactory explanation for the delay, so as to warrant the exercise of this Court’s discretion. 8. Accordingly, the Notice of Motion dated 8th December, 2025, is devoid of merit. It is dismissed with costs to the Respondent. 9. It is so ordered. ***Delivered, Dated and Signed virtually this 18th day of June, 2026*** **RHODA RUTTO** **JUDGE** **In the presence of;** **Court Assistant: Wabwire** **Mr. Mumo for the Respondent** **Mr. Simiyu holding brief for Mr. Wabuge for the Applicant**