https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1566

Solfin Solutions Ltd v Mwakima (Civil Application E070 of 2025) [2026] KECA 1566 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1566 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Application E070 of 2025 GW Ngenye-Macharia, JA July 31, 2026 Between Solfin Solutions Ltd Applicant and Margaret Wawuda Mwakima Respondent (Being an application for Stay of Execution of the Ruling of the High Court of Kenya at Voi (Asenath Ongeri, J.) delivered on 2nd July, 2025 in HCCC No. E053 of 2025) Ruling 1.By a Notice of Motion dated 31st July 2025 brought under Section 3A of the Appellate Jurisdiction Act Cap 9, Rule 20 of the Court of Appeal Vacation Rules, 2022, Rule 4, 5(2)(b), 43, 44(1), 45, 77(2) of the Court of Appeal Rules, 2022 and Article 159 of the Constitution, Solfin Solutions Limited (the applicant) seeks a raft of 8 prayers. Notably is that, prayers 1 and 2 are spent while prayers 3, 4 and 6 which seek orders of stay of execution and leave to appeal against the impugned ruling do not fall for determination by a single judge. In other words, the Motion as presented is an omnibus. Consequently, the only prayers that I should consider as a single judge are prayers (5), (7) and (8), which seek:“i.That leave/extension be granted for the Notice of Appeal uploaded on the e-filing portal on 7/7/2025 and confirmed as filed and receipted on 18/7/2025 be deemed as duly and properly filed.ii.That thereafter the Memorandum of Appeal accompanied herewith be deemed as properly filed.iii.That costs be provided for.” 2.At the outset, I wish to state that I shall, and in detail revert to prayer 6 for the reason that it was, at great length, submitted on by the respondent. 3.The application is supported by the grounds on its face and the affidavit of Nabil Adamjee, Officer and Director of the applicant company sworn on 31st July 2025. He deposes that the applicant uploaded the Notice of Appeal on the e-filing portal on 7th July 2025, 4 days after delivery of the Ruling, which was within the time required to file a Notice of Appeal; that the applicant did not receive a prompt to pay filing fees; that the applicant instructed its clerk to re-file the Notice of Appeal on 18th July, 2025, and that a receipt was accordingly issued: that the Notice of Appeal filed on 18th July 2025 should therefore be deemed as duly filed; that the delay in filing the Notice of Appeal was not deliberate or unreasonable; that the intended appeal is arguable as it raises bona fide issues deserving the full Court’s considerations as evinced by the annexed Memorandum of Appeal dated 30th July 2025; and that the applicant intends to file the record of appeal expeditiously, having requested for typed copies of proceedings from the court below. 4.Opposing the application, the respondent has filed a replying affidavit sworn by herself on 24th September 2025. She deposes that, under Rule 41(1) (b)(i) of this Court’s Rules, 2022, an application for leave to appeal must be made within 14 days of the decision against which the appeal is sought; that the instant application was filed outside the 14 days of the decision against which the appeal is sought, which was delivered on 2nd July 2025; and that, parties having submitted themselves to arbitration as a dispute resolution process, they should accept the finality of the arbitral award. 5.I heard the application on a virtual platform on 14th May 2026. There was no representation for the applicant, while learned counsel Mr. Limo holding brief for Mr. Omulloh appeared for the respondent. Suffice it to note that, counsel for the applicant M/s. Chianda & Co. Advocates, filed written submissions dated 9th October 2025. Equally, Mr. Limo entirely relied on the respondent’s written submissions dated 31st October 2025 without any highlights. 6.Foremost, it is interesting to note that the applicant did not submit on the sole prayer seeking extension of time to file the Notice and Memorandum of Appeal, yet this is the only prayer that falls for consideration by a single Judge. The submissions focused on the reasons why the applicant faults the learned Judge of the High Court in not allowing review of the ruling resulting from an application seeking to set aside an arbitral award. The applicant further justifies why a stay order should issue, yet, as I stated earlier, this prayer can only be considered by a full bench of the Court. 7.On her part, the respondent submits that the application is defective first, because the affidavit in support of the application does not state where it was sworn at, contrary to Section 5 of the Oaths and Statutory Declarations Act; and secondly, because the documents annexed to the supporting affidavit have not been securely sealed and serialized under the seal of a Commissioner (for oaths), in clear breach of Rule 9 of the Oaths and Statutory Declarations Rules; and that, consequently, the said documents cannot be admitted as affidavit evidence and should be expunged from record. Reliance was placed on the persuasive decision of the High Court in Chris Munga N. Bichage & 2 Others vs. Independent Electoral and Boundaries Commission & 2 others (2017) eKLR for the proposition that the afore-stated provisions are couched in mandatory terms, and that, therefore, a party must comply with them; and the decision of the Environment and Land Court at Kisii in Solomon Omwega Omache & another vs. Zachary O Ayieko & 2 others [2016] KEELC 827 (KLR) where it was held that, an affidavit without annextures was valueless and ought to be struck out. 8.According to the respondent therefore, an application without a valid affidavit cannot meet the legal requirement of evidentiary proof because it relies on facts that can be proved through affidavit evidence pursuant to Rule 45 of the Court of Appeal Rules, 2022. 9.Turning to the merit of the application, and as to whether I have jurisdiction to determine this application, the respondent submits that, under Rule 41(1) b(i) of the Court of Appeal Rules, 2022, an application for leave to appeal must be made within 14 days of the date of the decision sought to be appealed; that the impugned ruling having been delivered on 2nd July 2025, and this application having been filed on 31st July 2025, it means that it was filed out of time; and that, as such, this Court has no jurisdiction to consider the instant application. 10.It is further submitted that, a glance at the draft Memorandum of Appeal, points to the fact that the intended appeal does not raise triable issues; that this is because the appeal challenges refusal to review decision of the High Court made under Section 35 of the Arbitration Act; that the applicant has not met the threshold set out by the Supreme Court in Nyutu Agrovet Limited vs. Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch (Petition 12 of 2016) (2019) KESC 11 (KLR) (6 December 2019) (Judgment), with Maraga, CJ&P dissenting, to the effect that, an appeal would only fall to the Court of Appeal if it is demonstrated that, in setting aside an arbitral award, the High Court stepped outside the grounds set out in Section 35 of the Arbitration Act, thereby made a decision so grave, so manifestly wrong and which has completely closed the door of justice to either of the parties; and that, having established that the prayer for leave is unmerited, then granting the prayer for extension of time to appeal would serve no purpose as was held by this Court in Peter Nyaga Muvake vs. Joseph Mutunga (2015) eKLR. 11.I have considered the application, the affidavits in support of, and in opposition to, the application, the respective parties’ submissions and the law. The issues that commend themselves for determination are:i.Whether, as a single judge, I have the jurisdiction to entertain the application.ii.Whether the application is defective.c.Depending on the answers in (a) and (b) above, whether time should be extended within which the applicant should file the Notice and Memorandum of Appeal.c.Who should bear the costs of the application? 12.On the first issue, the same is premised on the respondent’s argument that, under Rule 41(1) a) (i) of this Court’s Rules, 2022, an application for leave to appeal must be made within 14 days of the impugned decision. The Rule reads as follows:1.In a civil matter-a.where an appeal lies with the leave of the superior court, application for such leave may be made-i.informally at the time when the decision against which it is desired to appeal is given; or 13.The fact that I have no jurisdiction to determine the prayers of execution were conceded by the applicant, and I therefore need say no more. 14.Having made the above observation, I must underscore the fact that omnibus applications create an untidy situation in that, a single judge is compelled to determine only the prayer(s) he or she has jurisdiction in while leaving some prayers in the same application undetermined, necessitating a referral to a full bench for determination of the prayers that the judge cannot determine. (See: Michael Kandie Kangoro vs. Mohamed Cheboi & 5 others (2026) KECA Civil Application No. NAK E141 of 2025 (Nakuru). And, in this regard, the applicant shall have to seek a date before a full bench to canvass the prayers that remain undetermined. 15.The starting point is Rule 55 which sets out which applications should be heard by either a single Jungle or a full bench of this Court. It provides as follows:1.Each application, other than an application specified in sub-rule (2), shall be heard by a single judge:Provided that such application may be adjourned by the judge for determination by the Court.2.This rule shall not apply to-a.an application for leave to appeal;b.an application for a stay of execution, injunction, or stay of further proceedings;c.an application to strike out a notice of appeal or an appeal; ord.an application made as ancillary to an application under paragraph (a) or (b) or made informally in the course of a hearing. 16.Needless to say then, is that, an application for leave to appeal should be heard by a full bench of the Court. I am therefore divested of jurisdiction to determine prayer (6) of the Motion, just in the same manner that I cannot, as a single Judge, consider a prayer seeking stay of execution. Accordingly, it is only a full bench of this Court that can consider whether or not an application for leave to appeal the impugned ruling was filed on time. 17.On the second issue with respect to the competency of the application, the same is premised on the respondent’s argument that the jurat to the supporting affidavit does not indicate the place at which it was sworn contrary to Section 5 of the Oaths and Statutory Declarations Act. The said Section reads:Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made. 18.Whereas Section 5 uses the operative word “shall”, I take the view that, since the affidavit complies with all other requirements, Article 159(2) (d) of the Constitution, which enjoins courts to administer justice without undue regards to procedural technicalities, comes into play. Of paramount importance to note is the fact that it has not been contested that the named deponent is the actual person who swore and signed the affidavit, more so before a Commissioner for Oaths. Disregarding the affidavit merely because the place at which it was executed is not indicated, may go a long way in denying a party the right to be heard. The real objective of courts is to do substantive justice. Furthermore, Order 19 Rule 6 of the Civil Procedure Rules expressly allows courts to receive defective or irregular affidavits in the interest of justice. 19.In the landmark decision in Kenneth K. Mwangi vs. City County of Nairobi & 2 others (2017) eKLR, the Court of Appeal directly rebuked a trial court for striking out a whole case because of an improperly executed affidavit. The Court proceed to reverse the trial court decision, holding that the trial Judge had grossly misdirected himself by deviating from the substance of the grievances while focusing on technicalities. The Court went on to clarify that we live in a modern constitutional era where substantive rights cannot be circumvented by mere technical errors; and that the court should focus on whether the core application can stand on its own grounds or allow a party a chance to cure the defect. 20.With respect to the assertion that the annextures have not been sealed and serialized under the seal of a Commissioner for oaths as required by Rule 9 of the Oaths and Statutory Declarations Rules, nothing can be further from the truth. Apart from the Arbitral Award, all other annextures have been serialized and, besides each of the annextures, is a Stamp of a Commissioner for Oaths one Odongo whose first name is not quite legible. The serial letters are also sequentially numbered. 21.Rule 9 provides that ‘All exhibits to affidavits shall be securely sealed thereto under the seal of the Commissioner, and shall be marked with serial letter of identification.’ The Third Schedule then gives the format of marking the exhibits as provides by Rule 9. In the instant case, the only deviation from the format provided, is the manner in which the Commissioner for Oaths sealed the exhibits as his signature and stamp are borne besides the serialized marking. This is clearly a defect for want of form. The undeniable fact is that the exhibits were placed before a Commissioner who attested them and appended his stamp and signature. As earlier observed, mere technicalities that do not go to the core of the application ought to be overlooked, and in adherence to Article 159(2)(b) of the Constitution, the objective herein is to do substantive justice. Accordingly, I find and hold that this mistake does not fetter my hands from doing substantive justice in determining the main issue that falls for determination. 22.This then leaves me to determine the third issue, which is the prayer for extension of time to file the Notice and the Memorandum of Appeal. 23.Rule 4 of the Court of Appeal Rules, 2022 confers upon this Court the jurisdiction to extend time as follows:The Court may, on such terms as may be 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. 24.In Athuman Nusura Juma vs. Afwa Mohamed Ramadhan (2016) KECA 395 (KLR), M’inoti, JA. rendered himself thus:“This Court has been careful to ensure that whether the intended appeal has merits or not is not an issue determined with finality by a single judge. That is why in virtually all its decisions on the considerations upon which discretion to extend time is exercised, the Court has prefixed the consideration whether the intended appeal has chances of success with the word “possibly”. 25.Inasmuch as this Court’s discretion is wide and unfettered, the underlying principle is that, in an application of this nature, the Court must exercise its discretion judiciously and not whimsically to the detriment of the other parties. Courts have settled on the guiding principles that should be considered in an application for exertion of time. These are: the length of the delay; the applicant should at the very least explain the reasons for the delay; the chances of the appeal succeeding; and lastly, the degree of prejudice which the respondent would suffer if the application was to be granted. Further, each case should be considered under its own circumstances. These principles were restated in the case of Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi Civil Appeal No. 255 of 1997; and further in the decision of Paul Wanjohi Mathenge vs. Duncan Gichane Mathenge (2013) KECA 199 (KLR) where Otieno-Odek. JA. held that:“The discretion under Rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice. I take note that in exercising my discretion I ought to be guided by consideration of the factors stated in previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent and interested parties if the application is granted, and whether the matter raises issues of public importance…” 26.In the same vein, the Supreme Court pronounced itself on the Court’s discretion to extend time to lodge appeal in the case of Andrew Kiplangat Chemaringo vs. Paul Kipkorir Kibet (2018) eKLR as follows:“……the law doews nto set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow ofdiscretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.” (Emphasis ours) See also Tobiko Ole Sandera vs. Republic (2023) KECA 782 (KLR). 27.In the instant case, the applicant averred that it uploaded the Notice of Appeal on the e-filing portal on 7th July 2025 about 4 days after delivery of the impugned ruling, but that, it did not receive a prompt to pay filing fees; that, as a precautionary measure, it refiled the Notice of Appeal on 18th July 2025 and a payment receipt was issued accordingly on the same date; that, therefore, the delay in filing the Notice of Appeal was neither deliberate nor inordinate; and that, glanced from the draft Memorandum of Appeal, it has an arguable appeal. 28.The screen shot which is annexed to the supporting affidavit is almost illegible save to read the name of the applicant’s counsel. It is difficult for me to tell the date on which the counsel accessed the Court’s e-filing portal and what document he was filing. Counsel would have been of help to the Court if he had had the screenshot certified by the Honourable Deputy Registrar of the Court so that the Court satisfies itself as to the averments that there was a delay in issuing a payment receipt. 29.By that as it may, the impugned ruling of the High Court having been delivered on 2nd July 2025, and proper filing of the Notice of Appeal having been done on 18th July 2025, there was a delay of only 2 days as under Rule 77(1) and (2), a notice of appeal should be filed within 14 days of the impugned decision. Further, I do not see what prejudice the respondent stands to suffer if the applicant is granted a chance to appeal, after all, the merits or otherwise of the appeal is yet to be determined; and parties shall have their day to advance their respective cases before a full bench in this regard. Rule 77(1) and (2) reads as follows: -1.A person who desires to appeal to the Court shall give notice in writing, which notice shall be lodged in two copies, with the registrar of the superior court.2.Each notice under sub-rule (1) shall, subject to rules 84 and 97, be lodged within fourteen days after the date of the decision against the decision for which appeal is lodged. 30.Further, under Rule 84(1), a Memorandum of Appeal should be filed within 60 days after lodging the Notice of Appeal. Having found that the 2 days delay was not inordinate, and being of the view that the applicant should be accorded an opportunity to be heard on appeal, I find that prayers 5 and 7 of the Notice of Motion dated 31st July 2025 are merited. Accordingly, I grant the following orders:i.The Notice of Appeal dated 7th July 2025 be and is hereby deemed as duly filed.ii.The said Notice of Motion dated 7th July 2025 be served within 7 days of the date of this Ruling.iii.The Memorandum of Appeal dated 31st July 2025 be and is hereby deemed as duly filed, and the same be served within 7 days of this Ruling.iv.Costs are awarded to the respondent. DATED AND DELIVERED AT MOMBASA THIS 31ST DAY OF JULY, 2026.G. W. NGENYE-MACHARIA…………………............…..JUDGE OF APPEAL