Sibed Transport Company Ltd v Kera

2. The Applicant subsequently led an application dated 28th April 2026 seeking to vary the terms of security by way of furnishing a bank guarantee as opposed to deposit of the decretal amount. By the directions of this court dated 5th May 2026, the court directed that the Application dated 17th March 2026 be heard rst to determine the merit of the issue of extension of time to appeal before determining the issue of variation of the terms of stay of execution as sought through the Application dated 28th April 2026. 3. This ruling is thus in respect of the Application dated 17th March 2026. It was supported by the grounds set on the face of the Application and the Adavit of Mohamed Yussuf Adan the director of the Applicant who averred that: - 4. i. The lower court delivered the ex parte judgment on 20th August 2021. ii. The Applicant led an application for setting aside the judgment and the court dismissed the said Application on 27th February 2025. iii. The Director of the Applicant was receiving treatment in Germany at the time of the delivery of the said ruling and was not notied of the outcome which he only knew upon being served with a notice of proclamation by the auctioneer. iv. The Applicant then immediately instructed his advocates to prepare and le the Application dated 18th February 2022 which the court dismissed. v. As illustrated in the draft Memorandum of Appeal annexed, the Appeal is meritorious and raises triable issues and the court ought to exercise discretion in favour of the Applicant who stands to suer injustice if opportunity to appeal is denied. vi. That it was in the interest of justice and vindication of the Applicant’s rights that the orders sought in the application be granted. In reply the Respondent led his Grounds of Opposition together with a Replying Adavit sworn on 4th May, 2026 as well as a Supplementary Adavit sworn on 16th June 2026 opposing the Application materially as follows: i. The ruling sought to be appealed from was delivered on 27th February 2025 and the Applicant only moved the court 1 year and 1 month later which was inordinately late. ii. No explanation was oered for the inordinate delay by failure to le appeal in 30 days. iii. The Applicant led multiple applications for stay of execution in the lower court after the judgement was delivered on 20th August 2021 and did not explain why the appeal was not led in time. iv. The Applicant had a pending application dated 24th February 2026 in the lower court when it led the instant Application and there was also another application dated 25th August 2025 and so the Applicant was guilty of material nondisclosure. v. There was no prayer for extension of time to le appeal against the judgement dated 20th August 2021. vi. The Applicant had not complied with the court order of 18th March 2026 and was not deserving of the discretion of the court. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2496/eng@2026-09-22 2

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Applicant’s Submissions 5. The Applicant through its Advocates Chamwada & Co. Advocates led its written submissions dated 26th May, 2026 and submitted inter alia that: i. That the Ruling was delivered on 27th February 2025. The Applicant’s Director was undergoing medical treatment in Germany and neither the Applicant nor its advocates on record were notied of the Ruling date or its outcome. It was submitted that when the proclamation notice was issued, the Applicant instructed its advocates, and this application was led immediately. Reliance was placed on Utalii Transport Co. Ltd & 3 Others v. NIC Bank Ltd & Another [2014] eKLR that: where a party acts promptly upon learning of a judgment, time should be extended. ii. Counsel further relied on the case of Peter Mathenge t/a Imperial Water Services v Juma (ELRC Appeal E210 of 2023) (2024) KEELRC 1753 where court accepted lack of knowledge of judgment delivery as a valid reason for delay nding the same reasonable and not inordinate. Counsel further relied on Article 50(1) of the Constitution on the right to fair hearing. iii. On the issue of whether the Applicant has demonstrated the merit of the intended appeal counsel submitted that the draft memorandum of appeal disclosed 3 arguable grounds and was not frivolous. Respondent’s Submissions 6. The Respondent through his advocates Kilonzo & Co. Advocates led written submissions dated 18th June, 2026 and submitted inter alia among others that: i. The Applicant came to court with unclean hands due to material nondisclosure and inordinate delay and was underserving of any equitable remedies from this court. ii. It was submitted that there was no leave sought to appeal against the judgment dated 25th August 2021 which was though being challenged. The delay from the said judgment was 5 years and the delay from the Ruling was 1 year and no explanation was tendered to justify the delay. iii. Counsel submitted that there was no evidence of the alleged medical treatment or travel to Germany and the purported document relied upon was in a foreign language without a translation. Counsel relied on the case of Dilpack Kenya Limited v William Muthama Kitonyi (2018) eKLR to submit that the Respondent was entitled to the judgment and the Applicant had not given a satisfactory explanation for the delay. iv. Further reliance was placed inter alia on the Supreme Court decision in County Executive of Kisumu v County Government of Kisumu & 8 Others (Civil Application No. 3 of 2016) 2017 KESC 16 KLR. Determination 7. This court has fully considered the Application, the, grounds of opposition, Replying Adavit by the Respondent the supplementary adavit and both parties’ submissions together with the authorities relied upon in making the nal determination in this matter. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2496/eng@2026-09-22 3

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8. On the issue of leave to appeal out of time the applicable Rule in applications of this nature is Rule 18 of ELRC (Procedure) Rules, 2024 which is the guiding law in answering the question whether the prayer to enlarge time to le the appeal is merited. 9. In this case, the Applicant seeks the draft Memorandum of Appeal to be deemed duly led. In Charles N. Ngugi v ASL Credit Limited [2022] eKLR the court held as follows: However, the intended appeal ought to have already been led before or together with an application seeking leave to extend time for ling an appeal. 10. The Supreme Court in the case of Nicholas Kiptoo Korir Arap Salat v IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The Court stated inter alia that: “ (T)he underlying principles a court should consider in exercise of such discretion include; 1. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; 2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; 3. Whether the court should exercise the discretion to extend time, is a consideration to be made a case- to-case basis; 4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; 5. Whether there will be any prejudice suered by the Respondent if the extension is granted; 6. Whether the application has been brought without undue delay. 11. In this particular case the application has been led with a draft Memorandum of Appeal. The impugned Ruling was delivered on 27th February, 2025. The Applicant claimed that the Ruling was delivered when the director of the Applicant was out of the country and unwell receiving treatment in Germany. 12. From the record it is clear that the Applicant was represented during the delivery of the Ruling. The Applicant’s counsel was all along aware of the Ruling and the proceeding decree and only decided to resurface when the Respondent started execution proceedings in February, 2026 only to rush to court to seek stay orders and extension of time in 17th March, 2026. The Court is not satised that the there was no other director or ocer of the Applicant who would act in the absence of the director who was said to be unwell. 13. The company was yet running its aairs during this time when the director is said to have been unwell. Either, it is not certain that the director was unwell for the documents furnished have no translation and, on their face, have dates in July 2025 when the Ruling was delivered in February 2025. 14. As the Ruling was delivered on 27th February 2025 and the Application was led on 17th March 2026, there was a delay of more than 12 months which is in the circumstances inordinate and having not been not been reasonably explained, the court nds it dicult to exercise discretion in favour of the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2496/eng@2026-09-22 4

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Applicant. In the case of Ramakant Rai vs. Madan Rai, Cr LJ 2004 SC 36, the Supreme Court of India rendered itself thus on the issue of judicial discretion: “ Judicial discretion is canalized authority not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed: “The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not a yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the eld of discretion that remains”. 15. The discretion of the court has to be exercised in accordance with the law. The Applicant’s appeal is anchored on seeking a chance to be heard. To this court, the interest of justice coupled with the right to be heard under Article 50 of the Constitution and the same to be heard without undue regard to technicalities under Article 159(2) of the Constitution are rights that apply to both parties herein and not just the Applicant. 16. Whereas it is not the court’s habit to shun away litigants unheard however indolent they may be, the court will give credence to an indolent party who persuades the court that in the circumstances, the delay is reasonable, not inordinate and has been satisfactorily explained. It cannot be that all applications brought before the court seeking leave to appeal on the basis of the right to be heard will automatically succeed under Article 50 and 159 (2) of the Constitution for rules of procedure. 17. The Court of Appeal has in Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] KECA 600 (KLR) stated as follows: “ The respondents are seeking umbrage under Article 159(2)(d) of the Constitution which provides that justice shall be administered without undue regard to procedural technicalities. It does not avail them. We are content to state that the constitutional provision is not meant to whitewash every procedural failing and it is not meant to place procedural rules at naught. In fact, what has befallen the respondents is proof, if any were needed, that there is great utility in complying with the rules of procedure. Such compliance is neither anathema nor antithetical to the attainment of substantial justice. As has been said before, the rules serve as hand maidens of the Lady Justice.” 18. On the issue of prejudice to be suered the court will balance the interests of the parties that is the right of the Respondent to enjoy fruits of his judgment and the right of the Applicant to be heard on appeal. This court notes that the Respondent has waited quite long for period of over 5 years since the judgment was delivered in 2021 to enjoy the fruits of his judgment. The Respondent’s case that the Applicant made attempts to stay execution in the lower court and in fact failed to disclose such applications to this court; some of which were pending determination while the instant Application was led has not been challenged. The Applicant cannot run a parallel process in this court and the lower court. To this court, the Applicant depicts itself as a party bent on defeating the decree as opposed to advancing a genuine case. 19. The court is therefore unable to exercise its discretion in favour of the Applicant. 20. In the upshot, the application dated 17th March 2026 is devoid of merit and is dismissed with costs to the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2496/eng@2026-09-22 5

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21. It is so ordered. DATED AT NAIROBI THIS 22ND DAY OF SEPTEMBER, 2026 DELIVERED VIRTUALLY THIS 22ND DAY OF SEPTEMBER, 2026 ABUODHA NELSON JORUM PRESIDING JUDGE-APPEALS DIVISION https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2496/eng@2026-09-22 6

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