Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application (notice of motion dated 18th July 2025) arising from HCCOMMMISC No. E145 of 2021

Southern Shield Holdings Limited v Titus Makhanu Associates Advocates & another (Civil Application E440 of 2025) [2026] KECA 120 (KLR)

Court of Appeal of Kenya
30 January 2026
1,142 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal let Southern Shield file its appeal late because court registry delays, not the company, caused the holdup.

What this practically means

#

Executive summary

#
Southern Shield Holdings Limited sought leave to file and serve its record of appeal out of time, challenging a decision of F. Mugambi J. dated 27th September 2024 in HCCOMMMISC No. E145 of 2021. The applicant lodged a notice of appeal on 2nd October 2024 and on the same day requested typed proceedings by letter. Proceedings were only supplied on 6th February 2025, a certified copy of the order on 12th May 2025, and the Certificate of Delay was signed on 10th July 2025. The application was lodged on 18th July 2025, eight days after the last document. Tuiyott JA applied the settled Fakir Mohamed criteria for extension of time under Rule 4. He held that because the applicant served its bespeaking letter, it benefited from the suspensory proviso to Rule 84(1), which excludes registry preparation time; the Certificate of Delay excluded 127 days of registry delay. Follow-up letters from the applicant's advocates demonstrated diligence, so the applicant was not an indolent litigant. The 1st respondent opposed, arguing the appeal was not bona fide and had been overtaken by events because the applicant paid the decretal sum and withdrew stay applications by consent. The court held that such compliance is a matter for the court hearing the intended appeal and does not bear on the extension application, and that no prejudice to the respondents had been demonstrated. The application was allowed with 45 days to file and serve the record of appeal; costs were made costs in the intended appeal.

Questions the Court framed

#

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

  1. 1.Whether the applicant should be granted leave to file and serve the record of appeal out of time under Rule 4 of the Court of Appeal Rules, having regard to the length of and reasons for the delay, arguability, and prejudice to the respondents

Key legal issues

#
01

Extension of time to file and serve a record of appeal under Rule 4

Holding

Extension granted where the delay was occasioned by the registry's delay in supplying proceedings, certified order and Certificate of Delay, the applicant acted diligently, and no prejudice to the respondents was demonstrated.

Reasoning

The court applied the Fakir Mohamed factors: period of delay, reasons for delay, arguability and prejudice. The applicant filed its notice of appeal and bespeaking letter within time, benefiting from the proviso to Rule 84(1). The Certificate of Delay excluded 127 days of registry preparation time; follow-up letters evidenced diligence; the application was lodged only eight days after the last crucial document. No prejudice was alleged against the respondents, so the plea for extension was deserving.

p. 3
02

Effect of compliance with the decision under appeal on an extension application

Holding

Alleged compliance with the High Court order is irrelevant at the extension stage and is for the court hearing the intended appeal.

Reasoning

The 1st respondent argued the appeal was moot because the applicant paid the decretal sum after negotiations and withdrew stay applications by consent. The court held this submission does not bear on whether extension should be granted; it is for the appeal court to decide. The court therefore did not determine whether the appeal was bona fide or arguable on the merits.

p. 3

Legal principles established

#
  • A litigant who lodges a notice of appeal and serves a written letter bespeaking proceedings within the prescribed timelines benefits from the suspensory proviso to Rule 84(1), excluding registry preparation time from the computation of time.
  • Delay attributable to the registry, evidenced by diligent follow-ups, is not the conduct of an indolent litigant and does not disentitle an applicant from an extension of time.
  • Contention that an intended appeal has been overtaken by events (e.g. compliance with the order under appeal) is a matter for the court hearing the intended appeal and has no bearing on an extension-of-time application.

Court orders

#
  1. 1.The application dated 18th July 2025 is allowed
  2. 2.The applicant shall within forty-five (45) days of the Ruling file and serve the record of appeal
  3. 3.Costs of the application shall be in the intended appeal

The bench

#

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

majority

Wrote the judgment

On appeal from
High Court of Kenya, Commercial and Tax Division
HCCOMMMISC No. E145 of 2021
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion to extend time)

Quotable passages

#

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

Ultimately the application dated 18th July, 2025 is for allowing, as I do. The applicant shall within fortyfive (45) days of this Ruling file and serve the record of appeal. Costs of this application shall be in the intended appeal.
p. 3Final orders - extension of time granted
Since the applicant served the respondents with the letter bespeaking for proceedings, they benefit from the suspensory proviso to sub-rule 1 of rule 84.
p. 3Suspensory proviso to Rule 84(1)
This is not the conduct of an indolent litigant.
p. 3Diligence of the applicant
the applicant has already complied with the High Court order dated 27th September, 2024 by paying the decretal sum rendering the intended appeal otiose is matter for the Court hearing the intended appeal to decide and has no bearing on the application this Court is currently asked to resolve.
p. 3Compliance with the order under appeal is for the appeal court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Southern Shield Holdings Limited v Titus Makhanu Associates Advocates & another (Civil Application E440 of 2025) [2026] KECA 120 (KLR)", Case Analysis (2026). Civil Application (notice of motion dated 18th July 2025) arising from HCCOMMMISC No. E145 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/120/eng@2026-01-30

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