Moi University v Vishva Builders Ltd

4. As soon as the ruling of 24th November 2025 was delivered, the applicant led a single Judge application on the same date, seeking extension of time to le notices of appeal against the judgment and ruling delivered by the High Court on 2nd February 2024 and 1st March 2024 respectively. 5. In dismissing the application the learned Judge stated that by the respondent’s application dated 7th April 2025, the applicant had been put on notice regarding non-service of the notices of appeal but had failed to take any action to cure the defect. The learned Judge observed that the applicant’s current advocates were placed on record on 14th April 2025 but did not take any remedial action until 25th November 2025, when the notices of appeal were struck out. 6. In urging its reference before us, the applicant faults the learned Judge for failing to nd that the applicant was not aware that the notices of appeal had not been served. The applicant further claims that the learned Judge did not consider the letter dated 15th August 2025, addressed to the applicant by its advocates, stating that rule 79 of the Court of Appeal Rules had been fully complied with, meaning that the notices of appeal dated 5th February 2024 and 8th March 2024 were duly served. 7. The application was heard on 8th July 2026 with learned counsel Mr. Kigen appearing for the applicant and learned counsel, Mr. Ashioya holding brief for Mr. Havi SC, appearing for the respondent. The applicant relied on its written submissions dated 28th April 2026, stating that the nding by the learned Judge that the applicant and its advocates were made aware of non-service of the notices of appeal was erroneous. 8. Relying on a letter dated 15th August 2025, the applicant claims that upon delivery of the judgment and ruling dated 2nd February 2024 and 1st March 2024 respectively, notices of appeal were led and served by its former advocates, Nyairo & Company Advocates. The applicant adds that it had relied on the assurance given by its advocates that rule 79 of the Court of Appeal Rules had been complied with. The applicant faults the learned Judge for failing to consider this fact. 9. The applicant assigns its inaction to a mistake of its counsel, citing the decisions in Mugure Mahinda v Ali Mohammed Farah [2012] KEHC 1910 (KLR) and Namatsi v Maria Makhanu & Another [2021] KECA 540 (KLR) for the proposition that mistakes of counsel should not be visited on their clients. 10. Citing rule 57 of the Court Rules and the decision in Kariuki v Wangeci & 7 Others [2024] KECA 1692 (KLR) the applicant sets out the following as valid reasons for a full bench of this Court to disturb a decision by a single Judge of the Court: that the Judge took into account an irrelevant matter which they ought not to have taken into account or; that the Judge failed to take into account a relevant matter which they ought to have taken into account or; that the Judge misapprehended or failed to properly appreciate some point of law or fact or; that in view of the available evidence and the relevant law the decision is plainly wrong. 11. The applicant further cited the Supreme Court decision in Salat v IEBC [2014] KESC 12 (KLR) on the applicable principles in determining an application for extension of time brought under rule 4 of the Court of Appeal Rules. The applicant states that the learned Judge selectively considered the issue of defects in the notices of appeal, while ignoring other factors such as the possible chances of the appeal succeeding, prejudice to the respondent and, public interest. 12. The respondent opposes the application by a replying adavit and submissions dated 30th April 2026. Relying on the decisions in Mutiso v Mwangi [1999] 2 EA 231 and George Mwenda Muturi v Mama Day Nursery and Primary School Limited [2014] eKLR, the respondent contends that the applicant did not advance any reasons for the delay of over one year, in ling and serving the notices of appeal. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2014/eng@2026-10-02 2

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13. The respondent terms the intended appeal frivolous as the judgment for the decretal sum had been admitted by the applicant in the course of the proceedings before the High Court. 14. We have considered the reference and the rival adavits and submissions led by the parties. The issue for determination before us is whether there are any grounds upon which we could disturb the ruling by the single Judge of this Court. A reference from the decision of a single Judge to a full bench of the Court is anchored in rule 57 of the Court of Appeal Rules which provides as follows: 1. 2. 15. Where under the provision to section 5 of the [Appellate Jurisdiction] Act, any person, being dissatised with the decision of a single judgea. … b. in a civil matter, wishes to have any order, direction or decision of a single judge varied, discharged or reversed by the Court, that person may apply therefor informally to the judge at the time when the decision is given or by writing to the Registrar within seven days thereafter. At the hearing by the Court of an application previously decided by a single judge, no additional evidence shall be adduced. Faced with a similar application as the one now before us, this Court, in Delmonte Kenya Ltd v Kariuki [2026] KECA 245 (KLR) stated the following: “In a reference before a full bench under rule 55 (now rule 57) of this Court’s Rules, the Court is required to consider, on the material that was before the single Judge, whether the Judge properly exercised discretion in allowing or declining the application before the Court. The principles governing the exercise of this court’s mandate on a reference are well settled. The full Court will not interfere with the decision of a single Judge unless it is shown that in arriving at his decision, the single Judge misdirected himself in some matter, took into account an irrelevant factor, failed to take into account a relevant factor, or that his decision is plainly wrong in light of all the circumstances.” 16. The applicant’s reference was made by letter dated 28th January 2026, addressed to the Registrar of the Court. The gravamen of the reference is that the learned Judge did not consider the contents of a letter dated 15th August 2025, by which the applicant was informed by its advocates that rule 79 of the Court Rules had been complied with, thus giving the applicant the assurance that the notices of appeal had been duly served. 17. In the impugned ruling dated 23rd January 2026, the learned Judge stated thus: “ I have considered the application, adavits on record and submissions by counsel and the law. The denite question for determination is whether the Applicant has met the threshold for this Court to exercise its discretion to grant the leave sought to open the door for the Applicant to le and serve its notices of appeal out of time against the judgment and ruling issued on 29th February 2024 and 1st March 2024 respectively in Eldoret High Court No. 051 of 1999. The discretion of a single Judge under Rule 4 is wide and unfettered but it must be exercised judiciously upon reason and not subjectively, impulsively on whim or emotion. For the Court to exercise discretion, the applicant must establish the foundation upon which the discretion should be exercised in his favour…” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2014/eng@2026-10-02 3

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18. Relying on well-established precedent such as Leo Sila Mutiso v Rose Hellen Wangari [1999] 2 EA 231 and Fahim Yasin Twaha v Timamy Issa Abdalla & 2 Others [2015] eKLR the learned Judge observed that in considering a plea for extension of time, the Court is required to take into account; the length of delay, the reason for the delay, the degree of prejudice to the respondent, and (possibly) the chances of the appeal succeeding. 19. In his ruling, the learned Judge stated the following: “ It is common ground that the Applicant’s Notices of Appeal were struck out by this Court for failure to comply with the Rules. As was held by the Supreme Court of India in Uday Shankar Triyar vs Ram Kalewar Prasad Singh (2006) 1SCC 75, procedural defects and irregularities which are curable should not be allowed to defeat substantive rights to cause injustice. It is trite law that rules of procedure should never be made a tool to deny justice or perpetuate injustice. However, as the Apex court of India stated in the above case, there are well recognized exceptions to the above principle. The court listed the following exceptions; a. Where the statute prescribing the procedure, also prescribes specically the consequence of noncompliance; b. Where the procedural defect is not rectied, even after it is pointed out and due opportunity is given for rectifying it; c. Where the noncompliance or violation is proved to be deliberate or mischievous; d. Where the rectication of defect would aect the case on merits or will aect the jurisdiction of the court; e. In case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the Appellant.” 20. While admitting that its notices of appeal were not served within the required timeline, the applicant attributes the lapse to post-judgment change of advocates, coupled with reliance on an assurance given by the rm of Nyairo & Co Advocates that rule 79 of this Court’s Rules had been complied with. The learned Judge considered these grounds and found them unworthy of activating his discretion in favour of the applicant. More signicantly, the learned Judge pointed out that even when it was brought to the attention of the applicant that its notices of appeal were defective, the applicant took no action to remedy the situation. 21. Exercising our circumscribed jurisdiction as a full bench on reference, we nd nothing to suggest that the learned Judge either took into account an irrelevant matter or failed to take into account a relevant one. The learned Judge arrived at a well-reasoned decision backed by the law and facts as presented before him. 22. That said, we nd the applicant’s reference to be without merit and dismiss it with costs to the respondent. DATED AND DELIVERED AT ELDORET THIS 2ND DAY OF OCTOBER, 2026. M. GACHOKA C.Arb, FCIArb .……………….. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2014/eng@2026-10-02 4

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JUDGE OF APPEAL NDUMA NDERI .……………….. JUDGE OF APPEAL L.M. NDOLO .……………….. 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/2026/2014/eng@2026-10-02 5

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