Top Image Africa Limited v UBA Kenya Bank Limited

judgment entered on 23rd January 2025 allowing the appeal and setting aside the judgment of the trial court. 3. The applicant was aggrieved by the outcome, but it’s pursuit of an appeal was beset by delays attributed to Counsel who is said to have failed to lodge the memorandum and record of appeal in time. It is further urged that the failure was not intentional and that the intended appeal is described as likely to succeed. 4. In opposing the application, Micky Matheka, the respondent’s acting head of legal and Company Secretary, by a replying affidavit dated 14th July 2026, deposes that the applicant has not given any satisfactory, candid or plausible explanation for the delay in bringing the present application which is delayed for over a year; that there is no explanation, supporting material and/or chronology to explain the delay in securing typed proceedings; that typed proceedings were never requested for; that the applicant has not shown as to when it obtained the certified proceedings or when it obtained the certificate of delay; that this court’s discretion is to aid justice and not to aid indolence; that the respondent would suffer prejudice as this is an already concluded dispute. 5. Turning to what is required of the applicant for granting relief under rule 4 of the Court of Appeal Rules, I have considered the grounds set out in the motion before this court, the matters contained in the affidavits on record as well as the written submissions by both parties. rule 4 of the Court of Appeal Rules, 2022, gives the court unfettered Page 2 of 7

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discretion in Page 3 of 7

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deciding whether to grant an applicant extension of time to do a particular prescribed action. Although under the said rule, this Court has unfettered discretion on whether to extend time or not, that discretion must be exercised judiciously as was set out in Leo Sila Mutiso vs Rose Wangari Mwangi, Civil Application No. Nai 255/97 (unreported), which pointed out that this discretion, however, must be exercised judiciously and upon reason, rather than arbitrarily, capriciously on a whim or sentiment. [See Julius Kamau Kithaka vs Waruguru Kithaki & 2 Others [2013] eKLR] 6. In Imperial Bank (IR) & Anor vs Alnashir Popat and Others [2018] eKLR M’Inoti, J. had this to say concerning Rule 4: “A look at legislative history of Rule 4 will show that before 1985 the rule required that an applicant to show ‘sufficient reason’ why discretion should be exercised in his favor. After an amendment in 1985 that ‘sufficient stricture’ was removed, and the court was henceforth allowed to extend time on such terms that it deemed just. As subsequent decisions show, the amendment did not mean that the court will extend time merely on the asking. The party seeking extension of time must establish basis upon which court should exercise its discretion in its favor.” 7. Discretion also depends on circumstances of each case as was discussed in Mongira & Another vs Makori & Another [2005] eKLR. The Supreme Court has settled principles to guide in exercise of discretion to extend time. Page 4 of 7

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The case of Page 5 of 7

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Nicholas Kiptoo Korir Arap Salat vs IEBC [2014] eKLR sets down these principles as follows: “i. 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. ii. A party who seeks extension of time has the burden of laying basis to the satisfaction of the court. iii. Whether the court should exercise its discretion to extend time is a consideration to be made on a case-by-case basis. iv. Where there is reasonable reason for the delay, the delay should be explained to the satisfaction of the court. v. Whether there will be any prejudice suffered by the Respondent if extension is granted. vi. Whether the application has been brought without undue delay. vii. Whether in certain cases public interest should be a consideration for extension of time.” One other consideration included by the learned Judge in the case of Julius Kamau Kitheka (supra) is whether prima facie the Intended Appeal/Appeal has chances of success or is a mere frivolity. 8. The Applicant has in the supporting affidavit, in trying to explain the delay in filing the Memorandum and record of appeal merely pronounces that there was a delay by the counsel on record and that the same was not intentional. Yet as pointed out by the respondent, the applicant has not disclosed cogent explanation for the delay - for instance, Page 6 of 7

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no Page 7 of 7

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certificate was provided to account for delay in obtaining proceedings. The respondent adds that the discretion of this court was intended to aid justice and not assist indolence. In face of such germaine responses and concerns raised by respondent, 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. It would appear that not much effort was put to this endeavor yielding an incomplete account falling short of threshold for the purposes of rule 4 of the rules of this court. The half hearted effort is insufficient and is clearly overwhelmed by the respondent’s rebuttal and cogent argument. 9. Regarding the length of the delay and what to make of it, the judgment sought to be appealed from was delivered on 23rd January 2025 and the present application is dated 23rd February 2026, having been filed over a year after judgment. It is noteworthy that the notice of appeal itself was lodged on 27th January 2025. 10. In arguing that the delay is not inordinate, the applicant, in its submission states that the failure to file the record of appeal timeously was that the deponent had travelled on personal matters and was unable to follow up or even communicate effectively or issue instructions regarding the filing of the appeal and only learnt that timelines for filing the appeal had lapsed on her return; that certified typed proceedings were Page 8 of 7

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ready on 29th May 2026; that the appeal is arguable and that the application has been brought without undue delay. 11. This court notes that the applicant in its submissions now introduces a new angle to the reason for delay, namely that the applicant had travelled, and as such, was not able to communicate with the advocates on instructions for filing appeal and only realized that time had lapsed on her return. This court notes in agreement with the respondent’s submission that there is lack of consistent chronology of events that would explain the delay. There is nothing attached to the supporting affidavit in the form of letter bespeaking proceedings, the certificate of delay and so on. The applicant has not even stated when she travelled and when she returned, a desiring of fact which ordinarily should have been disclosed through affidavit. This unfortunately leaves gaps in sequence, chronology and explanations rendering the account given for the delay not only suspect, but unsatisfactory. 12. Although it is also urged that the Intended Appeal has high chance of success, I will not say much on that aspect being conscious of the circumscribed mandate of a single judge which does not extend to determining the merits or otherwise of the Appeal. This Court has held in the case of Athuman Nasura Juma v Afwa Mohammed Ramadhan CA 227/15: “…this court has to be careful to ensure that the intended Appeal has merit or not is not an issue to be determined with finality by a Page 9 of 7

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single Judge”. Page 10 of 7

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I must bear this in mind whilst determining the present application. 13. Upon careful consideration of the grounds advanced in support of the application, the facts as stated in the rival affidavits as well as the submissions and the authorities cited as per the above analysis, it is my finding that the delay, which was inordinate, has not been explained satisfactorily. The fact of inconsistency in factual narration as between contents of supporting affidavit and facts upon which written submissions of the applicant were based, dents the applicant’s overall picture presented in this application. In the result, the application lacks merit and is dismissed with costs. Dated and Delivered at Nairobi this 25 th day of September, 2026 PAUL LILAN ………………. ………….. JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 11 of 7

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