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Court of AppealAllowedCivil Application (ruling on Notice of Motion dated 23rd June 2025)

Menengai Stores Ltd v Blue Nile Wire Products Ltd & another (Civil Application E379 of 2025) [2026] KECA 1341 (KLR)

Court of Appeal of Kenya
10 July 2026
2,354 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal gave a litigant 30 more days to file its appeal record, ruling that a missed email alone should not kill an appeal.

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 Nairobi (D. K. Musinga, JA) on a notice of motion dated 23rd June 2025 seeking extension of time to lodge and serve a record of appeal against part of the judgment of the Environment and Land Court at Nairobi (Oguttu Mboya, J.) delivered on 13th June 2024 in Nairobi ELC Case No. 41 of 2020. The trial court had declined specific performance of an agreement for sale of L.R. No. 12815, Kiambu, but ordered the 1st respondent to refund Kshs. 30,800,000 with 18% interest and granted the 1st respondent vacant possession. The applicant explained the roughly five-month delay partly by the fact that the trial court's notification that proceedings were ready, sent on 11th November 2024, went to info@CMS-DI.com rather than the litigation email addresses counsel consistently used; the applicant learned of the proceedings only when served with the 1st respondent's rule 5(2)(b) application. The 2nd respondent opposed, contending the lapse was an internal administrative matter of the advocates and that the Certificate of Delay was conclusive. The court applied settled rule 4 principles, holding that although counsel's email administration is their own responsibility, the explanation had to be assessed against the whole chronology; the unexplained gap from 15th April to 23rd June 2025 was not so inordinate as to defeat the application. The intended appeal was not frivolous, and no uncompensable prejudice was shown. The application was allowed with thirty days granted to lodge and serve the record; costs were ordered to abide the outcome of the intended appeal. The ruling does not disturb the trial court's judgment; the decision below remains intact pending the intended 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 applicant has satisfied the rule 4 criteria for extension of time to lodge and serve a record of appeal
  2. 2.Whether the delay of approximately five months has been satisfactorily explained, including the notification sent to a different email address of the applicant's advocates and the unexplained period between 15th April 2025 and 23rd June 2025
  3. 3.Whether the intended appeal is arguable
  4. 4.Whether the respondents will suffer prejudice if the extension is granted

Key legal issues

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01

Whether the delay was satisfactorily explained notwithstanding notification sent to an alternative email address of the applicant's advocates

Holding

Yes. Although internal email administration is counsel's responsibility, that lapse viewed in isolation did not defeat the application; the whole chronology was considered, and the unexplained gap from 15th April 2025 to 23rd June 2025, while not insignificant, was not so inordinate as to warrant refusal.

Reasoning

The court accepted that monitoring of counsel's email addresses is the advocates' internal responsibility, but held the explanation had to be judged holistically. The applicant had acted on learning of the proceedings, sought amendment of the Certificate of Delay, and its application followed promptly after refusal. The residual unexplained period did not outweigh the circumstances overall.

p. 4
02

Whether the intended appeal was arguable

Holding

Yes. The court declined to make definitive merits pronouncements but was not persuaded the intended appeal, which challenges refusal of specific performance and consequential reliefs, was plainly devoid of arguable grounds.

Reasoning

Applying settled rule 4 practice, the court held it is sufficient that the appeal is not frivolous. The intended challenge to the refusal of specific performance and the reliefs granted to the 1st respondent raised arguable issues, without any concluded view on merits.

p. 4
03

Whether the respondents would suffer prejudice

Holding

No. The 2nd respondent did not demonstrate prejudice incapable of compensation by costs, whereas refusal would deny the applicant its appeal.

Reasoning

Balancing competing interests, the court found the scales tilted in favour of allowing the appeal to be determined on its merits, since any prejudice was compensable by costs.

p. 4

Legal principles established

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  • The rule 4 discretion to extend time is unfettered but must be exercised judicially; the Court considers the length of the delay, the explanation, the chances of the appeal succeeding and prejudice, none of which is decisive.
  • In an extension of time application, the Court need not make definitive findings on the merits; it is enough that the appeal is not frivolous.
  • An explanation for delay must be assessed against the entirety of the chronology and the circumstances giving rise to the delay, not in isolation; counsel's lapse in monitoring email addresses, viewed alone, is not necessarily sufficient to defeat an application.

Court orders

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  1. 1.The Notice of Motion dated 23rd June 2025 is allowed
  2. 2.The applicant is granted thirty (30) days from the date of the ruling to lodge and serve the record of appeal
  3. 3.The costs of the application shall abide the outcome of the intended appeal

The bench

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

majority

Wrote the judgment

On appeal from
Environment and Land Court at Nairobi
Nairobi ELC Case No. 41 of 2020
Jurisdiction invoked
Articles 48 and 159(2)(d) of the Constitution; sections 3A and 3B of the Appellate Jurisdiction Act; rules 1(2), 4, 43, 44(1), 89 and 90 of the Court of Appeal Rules

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.

Accordingly, I allow the Notice of Motion dated 23ʳᵈ June 2025.
p. 4Disposition - application allowed
The applicant is hereby granted thirty (30) days from the date of this ruling to lodge and serve the record of appeal. The costs of the application shall abide the outcome of the intended appeal.
p. 5Final orders - 30 days to lodge record; costs to abide appeal
These considerations are not exhaustive, and no single factor is decisive. Rather, the Court must consider the circumstances of each case with a view to attaining a just outcome.
p. 3Rule 4 extension of time principles
Whether the explanation ultimately warrants the exercise of the Court's discretion must be assessed against the entirety of the chronology and not in isolation.
p. 4Holistic assessment of explanation for delay

Issues in the judgment

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minor

The judgment is delivered by a single judge (D. K. Musinga, JA) rather than a full bench of the Court of Appeal, which is atypical for a substantive rule 4 application; the signature block reads 'JUDGE OF APPEAL' with no coram.

minor

Chronology gap: the application is dated 23rd June 2025 and the ruling delivered 10th July 2026, but the applicant's submissions are dated 19th January 2026 - nearly a year after the application, suggesting a long interval not explained in the judgment.

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, "Menengai Stores Ltd v Blue Nile Wire Products Ltd & another (Civil Application E379 of 2025) [2026] KECA 1341 (KLR)", Case Analysis (2026). Civil Application (ruling on Notice of Motion dated 23rd June 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1341/eng@2026-07-10

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