Thuo Commercial Agencies v Kenya Airports Authority & 7 others

[consolidated and amalgamated from the original property LR No. 9362/3, 4731/1,6282 /2 and 11373 and dismissed the Applicant's counterclaim with costs. 2. Aggrieved by that judgement the Applicant signaled its intention to appeal the decision by lodging and serving a Notice of appeal dated 17th February, 2026. The Applicant also requested for certied copies of the decree, proceedings and judgement by letter dated 16th February, 2026. Both the Notice of Appeal and the letter bespeaking typed proceedings were lodged at the trial court on 18th February, 2026. The request was attended to and typed proceedings were supplied to the Applicants advocates who attempted to le a record of appeal together with a 5[2] b stay of execution application on 15th June, 2026. The record was rejected by the registry because it was incomplete. The rejection was discovered on 30th June, 2026 following which the instant application was led. The application is supported by three adavits; one sworn by, William Githui Advocate[4th July, 2026], and two adavits sworn by Moses Audi Advocate on 4th July 2026 and 1st September, 2026 respectively. The latter is a supplementary adavit clarifying that the typed proceedings were availed to the Applicant's counsel on 17th April, 2026 and not 14th April, 2026 as averred in the adavit sworn on 4th July, 2026. The applicant has also placed reliance on written submissions dated 27th July, 2026. 3. Essentially the Applicant contends that the delay in lodging the record of appeal was occasioned by the honest mistake of counsel[Mr. Audi] who compiled an incomplete record of appeal, which though led within 60 days of being furnished with the typed proceedings, was nevertheless rejected registry on 15th June,2026. That mistake was not discovered until 30th June, 2026 following an inquiry by Mr. Maina Ndua [a director of the Applicant] regarding the status of a rule 5[2][b]application for stay of execution which the Applicant expected to have been lodged by its counsel contemporaneously with the record of appeal. 4. Counsel for the Applicant explained that Mr. Audi Advocate who was responsible for ling both the record and the application suddenly fell ill on 16th June, 2026 leading to his admission in hospital. He attached medical records including a discharge summary from the Aga khan university Hospital marked Exh M.A-1 in the adavit of Moses Audi. He submitted that the door to appeal should not be closed because of an honest mistake of counsel. 5. The Application is opposed by the 1st Respondent through the adavit of its Corporation Secretary, Frida Mbugua sworn on 23rd July, 2026 augmented by written submissions dated 2nd September. The 1st Respondent asserts; that the application is incompetent and improperly before court, that the application has been occasioned by the Applicant's own default, the delay is lengthy multi -staged with three distinct periods which have not been explained; the 60 day period lapsed on or about 13th June, 2026, while the rejected record was led on 15th June, 2026, which was a day or 2 late. Counsel argued that; a] the initial default preceded Mr. Audi's illness on 16th June,2026 and that delay cannot be attributed to the illness; b] notication of the rejection of the record was received by Mr. Githua on 30th June, 2026 but the application for extension of time was not led until four days later on 4th July, 2026 and c] the applicant's director took 11 days or so days after ling the defective record of appeal before making an inquiry about the fate of the Applicant's 5[2] b; d] the applicant did not exercise a reasonable degree of diligence in monitoring progress despite value and magnitude of the brief entrusted to its advocates; https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1898/eng@2026-09-25 2

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e] which compounds rather excuses, the advocates default and f] Mr. Audi’s illness has not been substantiated. 6. The 1st Respondent further submitted that no arguable appeal has been demonstrated and the draft memorandum of appeal does not meet the legal threshold; that the jurisdiction to extend time under Rule 4 of the Court of Appeal Rules is a discretionary remedy, the grant of which is not a right but equitable in nature, requiring an Applicant to give plausible and reasonable explanation for the delay, and that the mistake of counsel is not a talisman that would of itself entitle the applicant to grant of that relief. Consequently the 1st Respondent contended that the Applicant is not worthy of the indulgence sought and prayed for dismissal of the application with costs. 7. The 2nd Respondent supported the application for extension of time and relied on written submissions dated 29th July, 2026 and cited relevant case law such Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi [1999] 2 on the principles and considerations that are to be taken into account when determining an application of this nature. However the 2nd Respondent did not stop there. It improperly prayed that it be granted leave to le a cross appeal if the application for extension of time to le the record of appeal is granted. The said prayer is completely at odds with and oblivious to the provisions of the law governing cross -appeals in particular Rule 95 of the Court of Appeal Rules. 8. The other Respondents did not le any response to the application. 9. I have considered the grounds of the application, the adavits in support thereof, the replying adavit, the rival written submissions and cited case law. The only issue for consideration is whether or not I should exercise my discretion in favor of the Applicant to enable le the record of appeal outside the timelines prescribed by Rule 84 of the Rules of this Court. 10. I have considered the duration of the delay and the explanation given for the delay. The delay is not inordinate as contended by the 1st Respondent. According to the 1st Respondent the record of appeal ought to have been led by Saturday 13th June ,2026, which is the 60th day from 14th April,2026 when the Applicant had stated is the day the typed proceedings. The Applicant’s incomplete record of appeal was led on 15th June,2026, which would be two days late. But the Applicant has claried that the proceedings were availed on 17th April,2026 and 60 days from that date would fall on Tuesday 16th June,2026. The application for extension of time was made within four days after the error was discovered. I do not consider a four days delay inordinate especially when taken together with the explanation that Mr. Audi whose adavit was necessary to explain the lapse was still in hospital. I also do not consider that the Applicant was not diligent in following up the matter with its advocate. A duration of 11 days is not unreasonably long period. 11. I am persuaded that the applicant has suciently and satisfactorily explained the delay. And though I agree with the 1st Respondent’s submission that the mistake of counsel is not a talisman which will entitle a party to extension of time by its mere invocation, this does not negate the fact that genuine mistakes do happen in the course of litigation. And court of law faced with an honest mistake of counsel would have to weigh the impact of that mistake against the wider interest of justice and lean towards the course that accord with the dictates of justice. As was held in Philip Chemwolo vs Augstine Kubende (1982) “blunders will continue to be made from time to time and it does not follow that a party should suer the penalty of having his case heard on the merits.” 12. In the circumstances of the instant case, I am satised that interest of justice tilt in favor of granting the Applicant’s request for extension of time to le its record of appeal. Accordingly, I allow the Applicants Notice of Motion application dated 4th July, 2026 and direct that the applicant shall le and serve its https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1898/eng@2026-09-25 3

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record of appeal within 14 days, following the delivery of this ruling. The costs of the application shall abide the outcome of the intended appeal. DATED AND DELIVERED AT NAKURU THIS 25TH DAY OF SEPTEMBER,2026. MURUNGI B. KAIRARIA …………………………… JUDGE OF APPEAL I certify that this is a True copy of the original Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1898/eng@2026-09-25 4

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