Radido v Duchess Park Development Company Limited & 15 others (Civil Appeal (Application) E325 of 2025) [2026] KECA 1045 (KLR) (29 May 2026) (Ruling)

Radido v Duchess Park Development Company Limited & 15 others (Civil Appeal (Application) E325 of 2025) [2026] KECA 1045 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1045 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E325 of 2025 P Lilan, JA May 29, 2026 Between Stephen Radido Applicant and Duchess Park Development Company Limited & 15 others Respondent (Being an application for extension of time to serve Record of Appeal from the Judgment of (Keli J.) delivered on 28th October 2024 in HCCOMMISC NO. E342 OF 2024) Ruling 1.By way of a notice of motion dated 8th October 2025, filed under Rule 4 of the Court of Appeal Rules, the applicant is seeking extension of time to serve the record of appeal and also asks that costs be provided for. The Application is supported by the affidavit of even date sworn by Quinter A. Oginga, the counsel representing the applicant. The decision sought to be challenged is the one issued by the High Court in a ruling delivered on 28th October, 2024 in HCCOMMISC No. E342 of 2024 2.The applicant was dissatisfied by the outcome, and immediately signified intent to appeal to this Court by filing a Notice of Appeal dated 4th November 2024, which was lodged with the Registrar of the trial court and served upon the respondents the same day, being only 8 days after the ruling was delivered. A request for proceedings was also made in writing on 8th November 2024, but there was a delay which has been accounted for by a certificate of delay dated 20th March 2025. The record of appeal was lodged on 1st April 2025. It is averred however that the counsel on record received a text from the court registry to the effect that the filing had been rejected but upon follow up, the same was confirmed as successfully registered the following day (2nd April 2026). Service of the duly filled record of appeal was then effected on on 25th April 2025, which according to the applicant, was within the time allowed for service of the same . 3.However, on 8th September 2025, directions were issued by this court on an application dated 1st September 2025 in which the 1st, 2nd, and 3rd respondents were seeking to strike out the Notice and Record of Appeal, and on perusing the application the applicant noted that the email forwarding the record to the respondents dated 25th April 2025 bounced back. The applicant admits having effected service upon the respondent afresh on 5th August, 2025 but maintains that this was a second service which was prompted by the new counsel, M/S Achayo & Company Advocates, who had come on record to represent the other respondents. It is averred that the said law firm requested to be served with hard copies and the applicant then decided to serve ALL the respondents. 4.In opposing the application, Jairo Tabu Anginyah, the 1st respondent’s director filed a replying affidavit dated 24th February 2026, in which he states that the applicant failed to meet stipulated deadlines for payment of security for costs on appeal and further that the record of appeal was served outside the stipulated timelines. The respondent further avers that there was no service via email. 5.Having considered the said application, the affidavits relied by the parties as well as the written submissions, I now turn to the question as to whether the applicant has met the threshold of requirements under rule 4 of the Court of Appeal Rules, 2022. Under the said rule, this court unfettered discretion in deciding whether to grant an applicant extension of time subject, however, to such discretion being exercised judiciously and upon reason as was set out in Leo Sila Mutiso vs Rose Wangari Mwangi - Civil Application No. Nai 255/97 (unreported), which pointed out that this discretion, however, must be exercised judiciously and upon reason, rather than arbitrarily, capriciously on a whim or sentiment. [See Julius Kamau Kithaka vs Waruguru Kithaki & 2 Others [2013] eKLR]. 6.In Imperial Bank (IR) & Anor vs Alnashir Popat & Others [2018] eKLR, M’Inoti, J. had this to say concerning Rule 4:“A look at legislative history of Rule 4 will show that before 1985 the rule required that an applicant to show ‘sufficient reason’ why discretion should be exercised in his favor. After an amendment in 1985 that ‘sufficient stricture’ was removed, and the court was henceforth allowed to extend time on such terms that it deemed just. As subsequent decisions show, the amendment did not mean that the court will extend time merely on the asking. The party seeking extension of time must establish basis upon which court should exercise its discretion in its favor.” 6.Discretion also depends on circumstances of each case as was discussed in Mongira & Another vs Makori & Another [2005] eKLR. The Supreme Court has settled principles to guide in exercise of discretion to extend time. The case of Nicholas Kiptoo Korir Arap Salat vs IEBC [2014] eKLR sets down these principles as follows: -i.Extension of time is not a right to 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 extension of time has the burden of laying basis to the satisfaction of the court.iii.Whether the court should exercise its discretion to extend time is a consideration to be made on a case- by-case basis.iv.Where there is 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 Respondent if extension is granted.vi.Whether the application has been brought without undue delay.vii.Whether in certain cases public interest should be a consideration for extension of time.One other consideration included by the learned Judge in the case of Julius Kamau Kitheka (supra) is whether prima facie, the intended Appeal/Appeal has chances of success or is a mere frivolity. 6.It is evident that the applicant all along was under the impression that service of the record of appeal had been successfully effected by electronic means (via email) within the time stipulated by the law. It learnt later that the email dated 25th April 2025 was actually returned undelivered. Apparently, the applicant only realized thus hitch when it came to light through the application seeking to strike out the record of appeal for want of timely service. The respondent on the other hand appear truthful in those circumstances in repudiating the alleged service via email. 7.It is therefore common ground that the first service via email on 25th April, 2025 was unsuccessful. Before weighing the explanation given by the applicant for the delay, it is helpful to first consider whether the delay itself was inordinate or not. In arguing that the delay is not inordinate, the applicant draws from the case of Nicholos Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, where the Supreme Court held that failure by the appellants to serve record of appeal within 7 days did not occasion the appellant real injustice. The applicant submits that it was an honest mistake in failing to notice that the email serving the record of appeal bounced and that mistake must not be visited on the client and the same was corrected as soon as the mistake was noted, relying on Murai v Wainaina (No. 4) KLR 38, the earlier email service was therefore within time. 6.The 1st - 3rd respondents submit that the affidavit in support of the application for extension of time was deponed by an advocate and the same was worthless, relying on BAW v ENW [2020] KEHC 3722 (KLR) where it was held that an affidavit deponed by an advocate on contentious issues was worthless hence no point in going into the merits of the application, saying that the same is lacking in merit, there being no valid affidavit in support, and ultimately no sufficient explanation has been given for the delay. 7.From the record and the applicant’s explanation, it comes out clearly that the applicant indeed served the record of appeal to the 1st - 3rd respondents via the email of 25th April 2025, although it turned out to have been unsuccessful. The email has been annexed to the application and said service was within the stipulated time. The applicant further submits that hard copies were served on all respondents ostensibly because the advocates for the other respondents (other than 1,2,3) came on record and requested to be served with hard copies. In acceding to request for hard copies, the applicant opted to serve ALL the respondents with hard copies and it is this service that triggered the 1st – 3rd respondents to file an application seeking to strike out the appeal. 6.In the circumstances, the applicant made effort to comply with stipulated timelines and also readily supplied the hard copies upon request. Hence the service effected on 5th August 2025 riding on prompting, as aforesaid, cannot be said to be inordinate delay taking into account the chronology of events so far as can be gleaned from the affidavits on record. 7.The respondents have pointed out that the affidavit in support of the application is sworn by the advocate on record and urges that it be deemed worthless on grounds that the same was deponing to contested facts. The argument is worthy of note in view of the general caution that readily commend itself to a court when dealing with affidavits sworn by advocates in matters where there are counsel on record. With that caution in mind, the said affidavit speak to what within her own knowledge being explanatory of steps taken by the advocates on record on behalf of clients in effecting service. The said steps were taken by the advocate, not the client, and if anyone other than the said advocate were to depose to the material facts, it would probably be on account of hearsay or at best ‘on basis of information’. In this situation, considering that it is an interlocutory application, there is no real prejudice that can turn on this aspect and therefore unnecessary to delve into the issue further. It suffices to say that this is one of those instances where court is justified in admitting an affidavit sworn by counsel on record for a party. 12.Turning to the findings, court therefore finds that the delay is not inordinate; that the explanation rendered is satisfactory; that the applicant has demonstrated sufficient reasons to warrant the orders sought. The application has merit and is hereby allowed. Costs of the application shall be borne by the applicant. DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MAY, 2026PAUL LILANJUDGE OF APPEALI certify that this is a true copy of the original SignedDeputy Registrar