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Court of AppealDismissedApplication dated 19th December 2025 (arising from Nakuru High Court Civil Case No. 5 of 2017)

Panner Seed (K) Ltd v Gorgar Farm Ltd (Civil Application E005 of 2026) [2026] KECA 1081 (KLR)

Court of Appeal of Kenya
3 June 2026
1,834 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive a lapsed appeal because the applicant never obtained a certificate of delay, making the delay unexcused.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nakuru (Mativo, JA) on an application dated 19th December 2025 under Rule 4 of the Court of Appeal Rules, 2022, seeking leave to file a memorandum and record of appeal out of time against the judgment of Ngetich, J. delivered on 20th July 2023 in Nakuru High Court Civil Case No. 5 of 2017. The applicant filed a notice of appeal on 2nd August 2023 and attributed the delay to administrative failures in obtaining certified proceedings, including alleged clerical errors that required correction. The respondent opposed, contending that the proceedings had been ready for collection since 7th October 2025 and that no sufficient reason justified the delay. The court restated the Salat principles governing extension of time and held that a plausible explanation covering the whole period of delay is the key that unlocks the discretion. Critically, it held that an appellant who attributes delay to the registry must obtain a certificate of delay, which serves as a statutory pause on the 60-day clock under Rule 85; without it, the notice of appeal dies a natural death on day 61 and is deemed withdrawn by operation of law. Finding that no certificate of delay had been obtained and that the explanation was not plausible, the court dismissed the application with costs to the respondent. This is an interlocutory single-judge decision, not an appellate judgment on the merits, and it disturbs no decision below.

Questions the Court framed

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

  1. 1.Whether the applicant should be granted leave to file a memorandum of appeal and record of appeal out of time
  2. 2.Whether the record of appeal should be deemed properly filed
  3. 3.Whether the applicant provided a plausible and sufficient explanation for the delay
  4. 4.Whether the absence of a certificate of delay is fatal to the application

Key legal issues

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01

Effect of failure to obtain a certificate of delay

Holding

Absence of a certificate of delay is fatal to an application for extension of time where delay is attributed to the registry; the notice of appeal dies a natural death after 60 days

Reasoning

Rule 85(1) imposes a strict 60-day window to institute the appeal, while Rule 85(2) excludes only the time needed to prepare and certify proceedings, provided the appellant applied for them in writing and obtained a certificate of delay. Without that certificate the clock never pauses, time spent waiting for the registry is the applicant's unexcused delay, and the notice of appeal is deemed withdrawn by operation of law.

p. 4
02

Plausibility of the explanation for delay

Holding

The applicant's explanation was not plausible; even accepting registry delay, no certificate of delay was obtained

Reasoning

Applying the Salat principles, the court found the applicant's explanation for the delay inadequate: proceedings were ready for collection in October 2025 and were forwarded by the respondent's counsel, and although the applicant alleged clerical errors in the typed proceedings, it neither obtained a certificate of delay nor explained the entire period of delay. The explanation was therefore vague and could not trigger the discretion.

p. 4

Legal principles established

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  • An appellant who seeks to exclude registry delay from the 60-day period under Rule 85 must obtain a certificate of delay; without it, the notice of appeal lapses on day 61 and the delay is treated as the appellant's own
  • Extension of time is an equitable discretion; a plausible explanation covering the entire period is the key that unlocks consideration of other factors such as prospects of success

Court orders

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  1. 1.Dismissal of the application dated 19th December 2025
  2. 2.Costs of the application to the respondent

The bench

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

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nakuru
Nakuru High Court Civil Case No. 5 of 2017
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022

Relief refused

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Leave to file memorandum of appeal and record of appeal out of time

The applicant failed to obtain a certificate of delay and the explanation for the delay was not plausible

p. 4

Order that the record of appeal be deemed properly filed

Follows from dismissal of the extension of time application

p. 4

Costs

Application dismissed with costs to the respondent

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.

By now it is manifestly clear that absence of the certificate of delay is fatal to the application before me. On this ground alone, this application collapses.
p. 4Consequence of failure to obtain a certificate of delay
Accordingly, I dismiss the application dated 19th December 2025 with costs to the respondent.
p. 4Final orders - dismissal with costs
A plausible, reasonable, and comprehensive explanation for the delay is a crucial, though not sole, factor that triggers the Court's discretion to grant extension of time to file an appeal.
p. 3Extension of time principles

Issues in the judgment

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minor

Paragraph 2 states the applicant filed submissions dated 9th February 2026, but the narrative begins 'The applicant filed submissions... In support of the application' while paragraph 5's text also refers to the applicant; paragraph 6 however says 'In opposition to the application, the respondent filed submissions dated 6th February 2026' yet describes them as citing Salat, Diplack and Alex Njue Kithangari, which are cited in the paragraph as the respondent's authorities - consistent. The clearer internal contradiction is in paragraph 5, which mixes applicant and respondent positions.

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, "Panner Seed (K) Ltd v Gorgar Farm Ltd (Civil Application E005 of 2026) [2026] KECA 1081 (KLR)", Case Analysis (2026). Application dated 19th December 2025 (arising from Nakuru High Court Civil Case No. 5 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1081/eng@2026-06-03

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