Pristine Holdings Limited v Kobado & 5 others

consequential steps taken pursuant thereto be regularized, and that the costs of the application abide the outcome of the intended appeal. 2. The Motion is founded on the grounds set out on its face and supported by the adavit sworn on 17th September, 2026, by Maurice Ouma, a director of the applicant, as well as a Further Adavit sworn by the same deponent on 25th September, 2026. All these documents speak to the fact that the applicant following delivery of the impugned judgment, promptly lodged a Notice of Appeal and, by a letter dated 8th September, 2025, requested for certied copies of the proceedings and judgment while simultaneously paying the requisite court fees. That despite persistent follow-up, including correspondence dated 23rd June, 2026, the certied proceedings and judgment were not supplied until 16th July, 2026. That a Certicate of Delay issued by the Deputy Registrar shows that the period between 8th September, 2025 and 16th July 2026, amounting to 311 days, was consumed in the preparation and supply of the proceedings, judgment and decree and was therefore excluded from the computation of time for purposes of ling the appeal. 3. That upon uploading the Certicate of Delay onto the Judiciary Case Tracking System on 4th September, 2026, it discovered that although the Certicate indicated that the certied decree had been collected on 16th July. 2026, the decree had not in fact been availed. Consequently, through a letter dated 8th September 2026, its advocates notied the Deputy Registrar of the anomaly and requested that the decree be availed and the Certicate of Delay withheld from approval pending rectication. According to the applicant, the certied decree was eventually supplied on 14th September, 2026, being the last day for lodging of the appeal, whereupon the complete Record of Appeal was immediately uploaded through the Judiciary e-Filing System. That the approval by the Deputy Registrar and processing of ling fees only occurred on 16th September, 2026, thereby causing the system to reect that date as the ling date. It is therefore maintained that the apparent delay arose solely from administrative lapses within the Judiciary e- Filing System and not from any default on the applicant's part. 4. The application is opposed through a replying adavit sworn on 23rd September, 2026, by John Owuor Kobado, the 1st respondent, on his own behalf and on behalf of the 2nd, 3rd and 4th respondents. The respondents contend that the applicant has not furnished a satisfactory explanation for what they describe as an inordinate delay exceeding one year in instituting the appeal. They further assert that the applicant failed to demonstrate diligent pursuit of the proceedings, failed to prove payment for the proceedings on 8th September, 2025, and only moved the Court after execution proceedings had commenced in earnest. The respondents additionally contend that the applicant did not comply with Rule 84 of the Court of Appeal Rules by serving the request for proceedings and further maintain that the intended appeal against the 1st to 4th respondents is untenable as they were not parties to the original suit. On those grounds, they urge the Court to decline the exercise of its discretion in favour of the applicant and dismiss the application with costs. 5. In reply, the applicant, while relying on the Further Adavit he swore on 25th September, 2026, reiterates that the delay was wholly attributable to the court registry and is fully accounted for by the Certicate of Delay. The applicant maintains that proceedings were requested by letter dated 8th September, 2025, that the requisite fees were paid on the same date, and that further follow-up was undertaken through correspondence dated 23rd June, 2026, until the proceedings were eventually availed on 16th July, 2026. The applicant further deposes that the respondents were duly served by email on 8th September 2025 with both the Notice of Appeal and the letter bespeaking proceedings. It also contends that the respondents’ challenge regarding their participation in the proceedings before the subordinate court raises substantive issues falling for determination in the intended appeal and not https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2111/eng@2026-10-06 2

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within the present application. The 5th and 6th respondents did not le any papers either in opposition to or support of the application. 6. The parties subsequently led written submissions dated 25th September, 2026, on behalf of the applicant and 2nd October, 2026, on behalf of the 1st to 4th respondents. The applicant submits that the Court's discretion under Rule 4 of the Court of Appeal Rules is broad and should be exercised in its favour because the delay has been satisfactorily explained, the intended appeal is arguable, and no prejudice incapable of compensation by costs will be occasioned to the respondents aforesaid. The respondents, on the other hand, maintain that the delay remains unexplained and inordinate and urge the Court to dismiss the application. Reliance by both parties was placed on Eric Kyalo Mutinda v Festus Mwangangi Masila [2020] KECA 520 (KLR), Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR and Fakir Mohamed v Joseph Mugambi & 2 Others [2005] eKLR, for the propositions that a party seeking extension of time bears the burden of satisfactorily explaining the length of the delay, the reason thereof , arguability of the intended appeal, prejudice to the respondent if the application is allowed and above all demonstrating entitlement to the equitable remedy sought. 7. I have carefully considered the application, the adavits placed before the Court, the rival submissions by counsel, the authorities relied upon and the law. The application falls for determination under Rule 4 of the Court of Appeal Rules, which vests in this Court a wide and an unfettered discretion to extend time. That discretion, while wide and unfettered, must, however be exercised judicially and upon sound principles. In the oft-cited Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, the Court held that, in considering an application for extension of time, the Court should take into account, among other factors, the length of the delay, the reason for the delay, the chances of the intended appeal succeeding, and the degree of prejudice likely to be occasioned to the respondent if extension of time is allowed. 8. The rst question for determination is whether the delay has been satisfactorily explained. From the material before me, it is evident that judgment was delivered by the Environment and Land Court at Migori on 26th August, 2025. The applicant then promptly lodged a Notice of Appeal and requested for certied proceedings and judgment by a letter dated 8th September, 2025. It subsequently obtained a Certicate of Delay showing that the period between 8th September, 2025, and 16th July, 2026, was spent in the preparation and supply of proceedings, judgment and decree. The applicant has further explained that upon discovery of diculties relating to the availability of the certied decree, correspondence was exchanged with the Deputy Registrar, culminating in the decree being availed on 14th September, 2026, whereupon the Record of Appeal was immediately uploaded through the Judiciary e- Filing System. The subsequent reection of the ling date as 16th September, 2026, has been attributed to administrative approval and payment processes within the e-Filing platform. 9. This Court has repeatedly held that delay occasioned by the process of obtaining proceedings and other essential court documents may constitute a satisfactory explanation for the delay where an applicant demonstrates diligence in pursuing the same. In Fakir Mohamed v Joseph Mugambi & 2 Others [supra], the Court emphasized that the discretion under Rule 4 is unfettered and that the Court may consider all relevant circumstances in determining whether sucient cause has been established. Similarly, in Muringa Company Limited v Archdiocese of Nairobi Registered Trustees [2020] eKLR, the Court reiterated that each application must be assessed on its peculiar facts and that a plausible and candid explanation for delay remains a critical consideration. 10. Having considered the chronology of events placed before the Court, I am satised that the applicant has furnished a reasonable and satisfactory explanation for the delay complained of. The explanation is supported by documentary evidence, including the Certicate of Delay and correspondence https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2111/eng@2026-10-06 3

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exchanged with the court registry. More importantly, there is no material before me suggesting that the delay was deliberate, contumelious or designed to obstruct the course of justice. The delay attributable to the discrepancy between the date of upload and the date reected in the Judiciary e-Filing System was minimal and arose from circumstances not wholly within the applicant's control. 11. The next consideration is whether the intended appeal is arguable. It is now settled that, at this stage, an applicant need not demonstrate that the appeal will ultimately succeed. Rather, it is sucient to show that the intended appeal is not frivolous and raises at least one bona de issue deserving consideration by the Court. In Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, this Court stated that an arguable appeal is not one that must necessarily succeed but one that raises a point worthy of judicial determination. 12. Although it is neither necessary nor desirable at this interlocutory stage to make denitive ndings on the merits of the intended appeal, I have considered the grounds intended to be advanced on appeal and the matters alluded to in the draft memorandum of appeal. Without saying more, I am satised that the intended appeal raises issues which cannot be said to be frivolous and which merit interrogation by this Court. I am therefore persuaded that the intended appeal meets the threshold of arguability for purposes of an application under Rule 4. The issue of some of the respondents being non- suited in the appeal is not for this forum to interrogate as correctly submitted by the applicant. 13. I now turn to the question of prejudice. The respondents urge that the application should be dismissed, but beyond opposing the explanation tendered for the delay, no specic prejudice has been demonstrated that would be suered if the orders sought are granted. It is well established that where any inconvenience likely to be suered by the respondent can adequately be compensated by an award of costs, such prejudice is not ordinarily sucient to defeat a deserving application for extension of time. 14. On the other hand, refusal to extend time would have the eect of permanently locking the applicant out of the appellate process. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [supra], the Supreme Court observed that extension of time is an equitable remedy available to a deserving litigant who satisfactorily explains the delay and demonstrates that the discretion of the Court ought to be exercised in his favour. The Court further stressed that each case must be considered on its own circumstances and in a manner that advances substantive justice. 15. I am equally mindful of the constitutional imperatives underpinning the administration of justice. Article 48 of the Constitution guarantees access to justice, while Article 50 safeguards the right to a fair hearing. Further, Article 159(2)(d) enjoins courts to administer justice without undue regard to procedural technicalities. In County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR, the Supreme Court underscored that procedural rules exist to aid the fair administration of justice and should not be applied in a manner that unnecessarily impedes the determination of disputes on their merits. 16. Taking into account the totality of the circumstances of this case, the explanation tendered for the delay, the Certicate of Delay issued by the court, the administrative diculties encountered in the Judiciary e-Filing System, the minimal nature of the delay requiring regularization, the arguability of the intended appeal, and the absence of demonstrable prejudice to the respondents, I am satised that this is a proper case for the exercise of this Court's discretion under Rule 4 of the Court of Appeal Rules,. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2111/eng@2026-10-06 4

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17. Accordingly, and for the foregoing reasons, I nd merit in the Notice of Motion dated 17th September, 2026, and hereby enlarge the time for instituting and ling the intended appeal in COACA/ E178/2026 and deem the Record of Appeal lodged through the Judiciary e-Filing System on 14th September, 2026, and reected as led on 16th September, 2026, as duly led within the extended period, regularize all consequential steps taken pursuant thereto, and direct that the costs of the application shall abide the outcome of the intended appeal. DATED AND DELIVERED AT KISUMU THIS 6TH DAY OF OCTOBER, 2026. ASIKE-MAKHANDIA ……………………………… 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/2026/2111/eng@2026-10-06 5

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