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Court of AppealAllowedCivil Application No. E030 of 2025 (as referenced; Notice of Motion dated 30th July 2025)

Mturi & another v Diamond Trust Bank Kenya Limited & another (Civil Appeal (Application) E142 of 2025) [2026] KECA 54 (KLR)

Court of Appeal of Kenya
30 January 2026
2,311 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal gave guarantors whose property was auctioned a second chance to file their appeal, ruling delays explained by earlier court decisions can be forgiven.

What this practically means

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Executive summary

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This is a ruling by a single Judge of Appeal, G. W. Ngenye-Macharia, JA, delivered at Mombasa on 30th January 2026 in a Notice of Motion dated 30th July 2025 by Jonathan Daniel Mturi and Patience Sikukuu Mturi, applicants, against Diamond Trust Bank Limited and Stephen Karanja Kangethe T/A Dalali Traders Auctioneers. The applicants, guarantors whose charged property was sold at public auction for Kshs.72,000,000 against an alleged forced market value of Kshs.97,500,000, sought enlargement of time to file and serve a Notice and Record of Appeal against a High Court ruling of 13th March 2025 (F. Wangari, J.) dismissing their challenge to the auction in Mombasa HCCOM No. E003 of 2025. Their first Notice of Appeal dated 24th March 2025 had been struck out on 1st July 2025 for failure to serve within seven days under Rule 79(1), and this Court then directed them to bring the present Rule 4 application. The sole issue was whether the applicants had satisfied the Court that they were entitled to extension of time. Relying on settled principles from Muringa Company Limited, Chemaringo and related authorities, the Court held that time could only be computed from the fresh Notice of Appeal and Record of Appeal, that the delay was not deliberate and was satisfactorily explained, and that no prejudice would be suffered by the respondents since the property had already been sold. It also reaffirmed that a single Judge cannot determine the merits of an intended appeal, that being a preserve of a full bench. The application was allowed with leave to file and serve the Notice and Record of Appeal out of time within seven days, automatically vacating if not complied with, and costs abiding the outcome of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants have satisfied the Court that they are entitled to extension and/or enlargement of time for filing a Notice and Record of Appeal

Key legal issues

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01

Whether the applicants were entitled to extension of time to file and serve a Notice and Record of Appeal

Holding

The application was allowed. The delay was not deliberate and was satisfactorily explained, being wholly dependent on the outcome of the respondents' successful application to strike out the earlier Notice of Appeal. No prejudice would be suffered by the respondents, who had already perfected the judgment by selling the property, and the propriety of the auction is for the full bench.

Reasoning

The Court applied the settled principles for extension of time: length of delay, reasons for delay, prejudice, and whether the appeal possibly has chances of success. It held that time could only be computed from the filing of the fresh Notice and Record of Appeal, since the present application was wholly dependent on the ruling that struck out the earlier Notice. It declined to delve into the merits, holding that assessment of arguability is a preserve of a full bench, and found no prejudice warranting refusal, as costs would compensate the successful party.

p. 5

Legal principles established

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  • A single Judge of the Court of Appeal may not finally determine the merits of an intended appeal when exercising the discretion to extend time; the consideration is only whether the appeal possibly has chances of success.
  • There is no minimum or maximum period of delay for extension of time; the delay must be satisfactorily explained with plausible and valid reasons.
  • Time for computing delay in a fresh application for extension of time runs from when the fresh Notice of Appeal and Record of Appeal were filed, where the earlier Notice was struck out and the fresh filing was dependent on that ruling.

Court orders

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  1. 1.The applicants be and are hereby granted leave to file and serve a Notice and Record of Appeal out of time
  2. 2.The Notice and Record of Appeal shall be filed within seven (7) days from the date of the Ruling
  3. 3.Orders (a) and (b) shall automatically stand vacated if the applicants do not comply as directed
  4. 4.Costs shall abide the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

On appeal from
High Court of Kenya (Mombasa)
Mombasa HCCOM No. E003 of 2025
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022; Sections 3A and 3B of the Appellate Jurisdiction Act

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The applicants be and are hereby granted leave to file and serve a Notice and Record of Appeal out time.
p. 5Final orders - extension of time granted
The Notice and Record of Appeal shall be filed within seven (7) days from the date of this Ruling.
p. 5Final orders - compliance timeline
A plausible and satisfactory explanation for delay is the key that unlocks the court’s fiow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.
p. 4Explanation of delay
it is not within the bounds of the jurisdiction of a single Judge to delve into the merits or demerits of the intended appeal as this is a preserve of a full bench
p. 4Limits of a single Judge's jurisdiction on arguability
Costs shall abide the outcome of the appeal.
p. 5Costs order

Issues in the judgment

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minor

The judgment states the Record of Appeal was filed on 18th July 2022, which is inconsistent with the chronology (ruling of 1st July 2025 and Notice of Appeal dated 1st July 2025); it appears to be a typographical error for 2025.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mturi & another v Diamond Trust Bank Kenya Limited & another (Civil Appeal (Application) E142 of 2025) [2026] KECA 54 (KLR)", Case Analysis (2026). Civil Application No. E030 of 2025 (as referenced; Notice of Motion dated 30th July 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/54/eng@2026-01-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.