Wanjogu & another v Kirimu

**IN THE COURT OF APPEAL AT NAIROBI** **(CORAM: OMONDI, JA, (IN CHAMBERS)) CIVIL APPEAL (APPLICATION) NO. E 881 OF 2024** **BETWEEN** **JAMES COMBA WANJOGU .............................. 1ST APPLICANT GICHOYA DEVELOPMENT** **COMPANY LIMITED …………………................... 2ND APPLICANT AND** **LILIAN WAIRIMU KIRIMU RESPONDENT** *(Being an application for extension of time to file an appeal from the ruling of the High Court at Milimani (Odero, J.) dated 19th October 2023 and part of the ruling (Chemitei, J.) dated 18th July 2024* ***in*** **Matrimonial Cause No. 078 of 2021)** **\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*** **RULING** 1. The background to this application is that the applicants were aggrieved by the ruling delivered on 18th July 202, (Chemitei, J.) in so far as it directed that Gichoya Development Company Limited, the 2nd applicant be enjoined in the suit. Being desirous to appeal, the applicants by a Notice of Motion dated 26th May 2026, seek leave to file a Notice of Appeal out of time against the said ruling; amend the Memorandum of Appeal and related pleadings to include the 2nd applicant as a substantive party; consolidate the appeal against the joinder order with this appeal; stay proceedings in Nairobi High Court Family Division Matrimonial Cause No. E078 of 2021; and adduce additional evidence. 1. The genesis of all this emerged when the respondent instituted Matrimonial Cause No. OS E078 of 2021 in the Family Division seeking, among others, orders touching on the assets of the Company, which in the applicants’ view is a body corporate. On 19th October 2023, the 1st applicant's Preliminary Objection was dismissed, and the court *(Dero, J.)*, held that the Family Division had jurisdiction over the Company's assets, solely because both spouses held shares and properties were acquired during the marriage. According to the applicants, no finding was made of co-mingling, deliberate obscuring of corporate personality, or use of the Company to conceal matrimonial property. That Ruling is the subject of this Appeal. 2. By a Ruling of 18th July 2024, *(Chemitei, J.)* enjoined the Company as the 2nd respondent without notice to or hearing of the Company. The same ruling granted the 1st applicant 14 days to file a Notice of Appeal against the Ruling of 19th October 2023, which was complied with on 26th July 2024. The Family Division has scheduled OS E78 of 2021 for hearing on 14th October 2026. Unless stayed, it will determine issues concerning the Company before this appeal is heard, rendering the appeal nugatory. 1. On 22nd April 2024, the 1st appellant instituted HCComm Misc. No. E345 of 2024 under Section 280 attend Board of the Companies Act to break the corporate governance deadlock caused by the respondent’s refusal to attend the Company’s Annual General Meetings since 2019, which threatened banking covenants and statutory compliance. The ruling delivered on 30th July 2025, affirming the Company's independent legal interest from the parties to the matrimonial proceedings, was not challenged. 1. In urging this Court to grant the prayers sought, the applicants point out that the delay in filing the Notice of Appeal was occasioned by an honest procedural misapprehension, not bad faith or deliberate non-compliance that the joinder order was made in the same ruling that directed the 1st applicant to file a Notice of Appeal against the substantive ruling of 19th October 2023 within 14 days. The applicants explain that there was compliance by filing the Notice of Appeal on 26th July 2024, not appreciating the need to separately challenge the Joinder Order as the Company had not participated in the proceedings at the Family Division due to the stalemate in its management. Reference is made to the case of ***Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231*** as well as ***Thuita Mwangi v Kenya Airways Limited [2003] eKLR.*** 1. In opposing the application, the respondent by an affidavit dated 13th July 2026, sworn by Lillian Wairimu Kirimu, deposes that the applicant was fully aware of the contents of the impugned ruling by opted to selectively limit the intended appeal to certain select portions of the ruling, then wait for eighteen (18) months before coming to court with the present application. The respondent describes the application as being brought after inordinate and inexcusable delay. 2. The applicants have created a quagmire by seeking orders for amendment of the memorandum of appeal as well as extension of time within which to file the appeal, while in the same vein there are prayers for stay of execution and leave to adduce additional evidence. In this regard, the applicants have presented to the Court an **“*omnibus”*** application - which cannot be granted by the Court sitting as a single Judge namely prayer (h) to (p) which seek orders of stay of execution as well as the prayers made in the alternative for adducing additional evidence; and the other which embraces the powers of a single judge bench. Indeed, even in the written submissions, the applicants state as follows: “**Whether proceedings in the High Court Family Division should be stayed** ***Rule 5(2)(b) of the Court of Appeal Rules empowers this Honourable Court to grant a stay of proceedings on such terms as it considers just. See Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR. This Appeal and the intended appeal against the joinder Order raise substantial issues of law on whether the Family Division can determine the affairs of a separate corporate entity as matrimonial property absent any pleading or finding justifying piercing the corporate veil and devoid of the right to fair hearing. The recognized exception arises where spouses have deliberately co-mingled matrimonial and corporate assets or used the corporate form to conceal matrimonial property, neither of which has been pleaded or established. The Company is duly constituted with its own governance structures under the Companies Act”*** 1. The mentioned prayer cannot be granted by a single Judge of the Court; and falls within the docket of a full bench as provided by rule 55 of the Court of Appeal Rules that: **“(1) Each application, other than an application specified in sub rule (2), shall be heard by a signal Judge. Provided that such application may be adjourned by the Judge for determination by the Court.** **(2) This rule shall not apply to:** **(a)....** **(b) an application for stay of execution, injunctions or stay of further proceedings.** **(c). ”** This Court will therefore not render a decision in respect of the same. The applicant shall be at liberty to list that prayer for determination by the full bench of the Court. 1. With regard to the prayer seeking leave for extension of time within which to fie the Notice of Appeal, the issue for determination is whether the applicant is deserving of the orders sought. Rule 77 of the Court of Appeal Rules requires an intended appellant to lodge the Notice of Appeal, before or within fourteen (14) days of the decision, then within 7 days of lodging the notice of appeal, serve copies thereof on all persons directly affected by the appeal- this did not happen. The discretion that I am called to exercise in the determination of this application is unfettered and is provided under Rule 4 of the Court of Appeal Rules which provides as follows: **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.** 1. Rule 4 of the Court of Appeal Rules does not provide for factors the court ought to consider in an application for extension of time but courts have devised appropriate principles to be applied in achieving a ‘just’ decision in the circumstances of each case. The case of ***Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231*** which is the locus classicus, laid down the parameters as follows: “***It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.”*** 1. In ***Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees, Civil Application [2020] KECA 761,*** it was observed that: ***“Some of the considerations, which are by no means exhaustive, in an application for extension of time include the length of the delay involved, the reason or reasons for the delay, the possible prejudice, if any, that each party stands to suffer, the conduct of the parties, the need to balance the interests of a party who has a decision in his or her favour against the interest of a party who has a constitutionally underpinned right of appeal, the need to protect a party’s opportunity to fully agitate its dispute, against the need to ensure timely resolution of disputes; the public interest issues implicated in the appeal or intended appeal; and whether, prima facie,*** ***the intended appeal has chances of success or is a mere frivolity.”*** 1. How long was the delay in this instance? 18(eighteen) months. What was the reason? Counsel has been candid enough to own up to his misapprehension of the procedural legal approach which ought to have been adopted ***ab initio*.** The issue for argument in the intended appeal against the Joinder Order is was heard without the participation of the 2nd applicant, yet the orders affect it. In my considered view, 18 months is not inordinately long, and in any event the length of the delay involved, the reason or reasons for the delay, the possible prejudice, if any, that each party stands to suffer tilts in favour of the 2nd applicant who would otherwise suffer the consequences of being shut out of the arena, whatever outcome the appeal might produce. 1. Linked to the need to file a complaint notice of appeal, is the need to amend the Memorandum of appeal so as to reflect the 2nd applicant as a party. I have considered the grounds in support of the amendment as well as the rival arguments presented. Rule 46 (1) of the Court of Appeal Rules, 2022 which provides for amendment of pleadings as follows: **Applications for leave to amend:** * 1. **Whenever a formal application is made to the Court for leave to amend any document, the amendment for which leave is sought shall be set out in writing and,** 1. ***if practicable, lodged with the Registrar and served on the respondent before the hearing of the application or,*** 2. ***if that is not practicable, handed to the Court and to the respondent at the time of the hearing.*** 2. **Where the Court gives leave for the amendment of a document, whether on a formal or an informal application, the amendment shall be made or an amended version of the document be lodged within such time as the Court when giving leave may specify and if no time is so specified, then within forty-eight hours of the giving of leave and on failure to comply with the requirements of this sub-rule, the leave so given shall determine.** 1. Whereas rule 46 does not state what the Court ought to consider before granting an amendment, it is not lost to me that discretionary power must be exercised judiciously dictated by reason rather than capriciously or arbitrarily. Indeed, this was succinctly expressed in and dictates of justice the case of ***Kanawal Sarjit Singh Dhim vs. Keshavji Jivraj Shah [2010]*** that: **“The discretion to amend, like all discretions exercisable by the court, however wide or unfettered, must not be based on whim or caprice. It is a judicial process and must therefore be based on reason.”** 1. In ***Joseph Ochieng & Others t/a Acquiline Agencies vs First National Bank of Chicago (Civil Appeal No. 147 of*** ***1991) (UR)****,* set out the principles to guide courts in applications for amendment of pleadings, as: 1. ***to determine the true substantive merits of the case;*** 2. ***the amendments should be timeously applied for;*** 3. ***power to amend can be exercised by the court at any stage of the proceedings;*** 4. ***that as a general rule however late the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side;*** 5. ***if an amendment would deprive the responding party of the right to rely on limitations Act subject however to powers of the court to still allow and amendment notwithstanding the expiry of current period of limitation.*** 6. I can do no better than to echo verbatim the contents of the decision by Mativo, JA in ***Njiri & another v Wangui & 2 others (Civil Application E018 of 2026) [2026] KECA 789*** ***(KLR) (23 April 2026) (Ruling)*** that: **“*A memorandum of appeal is a document that is rightly amenable to amendment. The principles that guide courts when considering an application for amendment of a pleading are clear and these are that amendments to pleadings sought before hearing should be freely allowed so long as they do not cause injustice to the other side. The predecessor to this Court held in the case of* Eastern Bakery vs. Castelino [1958] EA 461 a*s follows: -*** **“Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs.”** 1. The critical issue is whether the respondent will suffer prejudice if the amendment sought is allowed simply to reflect the joinder as had been directed in the contested decision. There is absolutely nothing to suggest that the respondent will be prejudiced if the amendment is allowed. Accordingly, the applicants are hereby granted leave to file and serve their amended memorandum of appeal as well as the Notice of Appeal within 14 days hereof. The costs shall abide the outcome of the appeal. **Dated and delivered at Nairobi this 11th day of September, 2026.** **H.A. OMONDI** **………………………………… JUDGE OF APPEAL** *I certify that this is a true copy of the original.* **Signed** **DEPUTY REGISTRAR**