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Court of AppealDismissedCivil Application No. E090 of 2026

Top Image Africa Limited v UBA Kenya Bank Limited

Court of Appeal
25 September 2026
1,615 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to forgive a company's one-year delay in filing appeal papers because it offered no credible, documented explanation.

What this practically means

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Executive summary

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This is a ruling by Lilan JA, sitting in chambers at Nairobi, on a notice of motion dated 23rd February 2026 brought under rules 4 and 47 of the Court of Appeal Rules, 2022 by Top Image Africa Limited. The applicant sought extension of time to serve its notice of appeal and to file and serve the memorandum and record of appeal against a High Court judgment (Namisi J., Commercial Appeal E162 of 2022, delivered 23rd January 2025) which allowed the bank's appeal and set aside the trial court's judgment in its favour. The applicant blamed counsel's failure to lodge the appeal documents in time and, in submissions, the deponent's travel abroad. The respondent countered that the delay of over a year was inordinate and unexplained, that no chronology, letter bespeaking proceedings or certificate of delay was exhibited, and that the discretion should not aid indolence in a concluded dispute. The court restated the settled principles from Salat vs IEBC and related authorities: extension of time is an equitable, discretionary remedy; the applicant bears the burden of explaining the delay to the court's satisfaction; and a single judge cannot determine the merits of an intended appeal with finality. Finding the applicant's account inconsistent, unsupported and unsatisfactory, the judge held the inordinate delay unexplained and dismissed the application with costs to the respondent. The decision is binding on the parties and confirms the evidentiary burden on rule 4 applicants.

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 principles for grant of extension of time under rule 4 of the Court of Appeal Rules, 2022
  2. 2.Whether the delay of over a year in filing the memorandum and record of appeal has been satisfactorily explained
  3. 3.Whether the respondent would suffer prejudice if the extension were granted

Key legal issues

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01

Whether the delay in filing the memorandum and record of appeal was satisfactorily explained

Holding

The delay of over a year was inordinate and unexplained; the applicant's affidavit and submissions gave inconsistent accounts and lacked supporting documents such as a letter bespeaking proceedings or a certificate of delay.

Reasoning

The applicant attributed the delay to counsel and later to the deponent's travel, but did not state when she travelled or returned, and attached no chronology, letter bespeaking proceedings or certificate of delay. The court found the account inconsistent, suspect and insufficient to meet the rule 4 threshold, overwhelmed by the respondent's rebuttal.

p. 9
02

The principles governing exercise of discretion under rule 4

Holding

Extension of time is an equitable remedy available to a deserving party; the applicant must lay a basis to the court's satisfaction, explain the delay, and show absence of prejudice and undue delay in bringing the application.

Reasoning

The court adopted the settled principles in Nicholas Kiptoo Korir Arap Salat vs IEBC, supplemented by the Julius Kamau Kithaka consideration of whether the intended appeal is prima facie arguable or frivolous, and Imperial Bank on the legislative history showing the applicant must establish a basis for the discretion.

p. 6
03

Whether the single judge could assess the merits of the intended appeal

Holding

The circumscribed mandate of a single judge does not extend to determining the merits of the intended appeal with finality.

Reasoning

Relying on Athuman Nasura Juma v Afwa Mohammed Ramadhan, the judge declined to make definitive findings on the asserted high chances of success, confining himself to whether the appeal was a mere frivolity for purposes of the rule 4 factors.

p. 9

Legal principles established

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  • Although rule 4 confers unfettered discretion to extend time, that discretion must be exercised judiciously and upon reason, not arbitrarily or on a whim.
  • An applicant seeking extension of time bears the burden of establishing, on a balance of probabilities, justifiable reasons for the delay.
  • A single judge of the Court of Appeal cannot determine the merits or arguability of an intended appeal with finality when dealing with a rule 4 application.

Court orders

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  1. 1.The application dated 23rd February 2026 seeking extension of time is dismissed
  2. 2.Costs of the application awarded 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, Commercial and Tax Division
Commercial Appeal E162 of 2022
Jurisdiction invoked
Rules 4 and 47 of the Court of Appeal Rules, 2022

Relief refused

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Extension of time to serve the notice of appeal and to file and serve the memorandum and record of appeal

The inordinate delay of over a year was not satisfactorily explained; the applicant's account was inconsistent and unsupported by documentary evidence such as a certificate of delay

p. 11

Costs

The application is 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.

In the result, the application lacks merit and is dismissed with costs.
p. 11Final orders - dismissal of the extension of time application
the applicant carries the burden of proving on a balance of probabilities that there were justifiable reasons that prevented it from meeting the statutory timelines for filing the memorandum and record if appeal
p. 8Burden of proof on extension of time applications
the discretion of this court was intended to aid justice and not assist indolence
p. 8Discretion to extend time not a shield for indolence
Extension of time is not a right to a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.
p. 6Nature of extension of time remedy (Salat principles)

Issues in the judgment

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minor

Conflicting case numbers for the decision appealed from

minor

Page numbering is internally inconsistent ('Page 11 of 7')

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, "Top Image Africa Limited v UBA Kenya Bank Limited", Case Analysis (2026). Civil Application No. E090 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1822/eng@2026-09-25

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