Mohamed v Diamond Trust Bank Kenya Limited & another (Application E035 of 2024) [2025] KESC 17 (KLR) (11 April 2025) (Ruling)

Mohamed v Diamond Trust Bank Kenya Limited & another (Application E035 of 2024) [2025] KESC 17 (KLR) (11 April 2025) (Ruling) Neutral citation: [2025] KESC 17 (KLR) Republic of Kenya In the Supreme Court of Kenya Application E035 of 2024 MK Koome, CJ & P, PM Mwilu, DCJ & VP, SC Wanjala, N Ndungu & I Lenaola, SCJJ April 11, 2025 Between Fuad Mahmoud Mohamed Applicant and Diamond Trust Bank Kenya Limited 1st Respondent Diamond Trust Insurance Agency Limited 2nd Respondent (Being an application for extension of time to file an application to review the Ruling and Order of the Court of Appeal at Mombasa (Nyamweya, Lesiit & Odunga, JJA) in Mombasa Court of Appeal Civil App. Sup. No. E001 of 2023 dated 8th December, 2023) Application for extension of time denied by the Supreme Court _The applicant sought extension of time to file an application for review of the Court of Appeal’s decision declining certification to appeal to the Supreme Court. He attributed the delay to errors by previous counsel regarding filing timelines and procedures due to assuming the Christmas break for the High Court and Court of Appeal also applied to the Supreme Court. The Supreme Court found the delay inordinate and inadequately explained. It held that while mistakes of counsel may be excusable, the applicant failed to demonstrate diligence. Consequently, the application was dismissed with each party bearing their own costs._ Reported by John Ribia **_Civil Practice and Procedure_** _– extension of time – extension of time application before the Supreme Court – applicable principles - what principles did the Supreme Court consider in an application for leave for extension of time - whether delay attributed to counsel assuming the Christmas break as applied in the Court of Appeal and High Court also applied to the Supreme Court was allowable to warrant extension of time at the Supreme Court - Supreme Court Act (cap 9B) sections 3, 3A, and 21(2); Supreme Court Rules 2020 (cap 9B Sub Leg) rules 15(2),31, and 33(2); Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR_ Brief facts The applicant filed an application seeking leave to extend time to apply for review of the Court of Appeal’s ruling which declined to certify his matter for appeal to the Supreme Court. The initial originating motion was struck out for being filed late. The reason for delay in complying with the Supreme Court’s Rules was that his former counsel had the honest belief that the exclusion of the Christmas vacation in computation of time applicable in the High Court and the Court of Appeal also applied to the Supreme Court. The applicant further averred that the hard copies of his originating motion were not filed as his former advocate believed that the practice of only filing electronically cuts across all tiers of the courts. The application was opposed by the 1st respondent as inordinate and prejudicial. Issues 1. What principles did the Supreme Court consider in an application for leave for extension of time? 2. Whether delay attributed to counsel assuming the Christmas break as applied in the Court of Appeal and High Court also applied to the Supreme Court was allowable to warrant extension of time at the Supreme Court. Held 1. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court; a party who sought for extension of time had the burden of laying a basis to the satisfaction of the court; whether the court should exercise the discretion to extend time, was a consideration to be made on a case to case basis; whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; whether there will be any prejudice suffered by the respondents if the extension was granted; whether the application had been brought without undue delay; and whether in certain cases, like election petitions, public interest should be a consideration for extending time. 2. While striking out the application for reason that leave was not sought to file the application out of time, the Supreme Court expressly noted that in line with rule 12 of the Supreme Court Rules 2020, pleadings filed in the Supreme Court must be in both printed and electronic form to be considered complete. 3. The only regime of law that governed proceedings before it the Supreme Court was the Constitution, the Supreme Court Act, the Supreme Court Rules and any Practice Directions. It was disingenuous for the applicant’s counsel to aver that he had the mistaken belief that the practice in the superior courts below would apply for matters filed before the Supreme Court. It was imperative for the applicant’s counsel to acquaint themselves with the Supreme Court’s Rules before filing any pleadings before the court. 4. Whereas mistakes of counsel ought not to be visited upon a litigant, there must be cogent and credible evidence that the applicant made concerted efforts or due diligence, through evidence or correspondence of the follow up with the advocates to pursue his rights. It was not enough for a party to simply blame the advocates on record for all manner of transgressions. The appellant changed his advocates on more than one occasion with a similar outcome. 5. The delay in filing the application was inordinate and had not satisfactorily been explained. While it was appreciated that the appellant’s advocates might have been culpable, the instant application was a knee jerk reaction to the Supreme Court’s earlier ruling. 6. Rule 36(4) of the Supreme Court Rules made it optional to file a notice of appeal either before or after certification in a matter of general public importance, and that even though the Notice of Appeal submitted was not stamped or endorsed by the Court of Appeal, the same was not fatal. _Application dismissed._ Orders _Each party to bear their own costs._ Citations **Cases**** _Kenya_** _1\. Amollo v Wilson_ Application E014 of 2023; [2023] KESC 77 (KLR) - (Explained)2\. _Attorney General v Law Society of Kenya & another_ Civil Appeal (Application) 133 of 2011; [2013] KECA 372 (KLR) - (Mentioned)3\. _Bookpoint Limited v Guardian Bank Limited & another_ Application 4 (E006) of 2021; [2021] KESC 73 (KLR) - (Mentioned)4\. _Charo v Mwashetani & 3 others_ Civil Application 23 of 2014; [2014] KESC 5 (KLR) - (Mentioned)5\. _County Executive of Kisumu v County Government of Kisumu & 8 others_ Civil Application 3 of 2016; [2017] KESC 16 (KLR) - (Mentioned)7\. _Gaciani & 11 others v Kimanga & another_ Application E004 of 2023; [2023] KESC 23 (KLR) - (Explained)8\. _Itolondo v Attorney General & 9 others_ Application 3 (E005) of 2021; [2021] KESC 44 (KLR) - (Mentioned)9\. _Leiyagu, Richard Ncharpi v Independent Electoral Boundaries Commmission & 2 others_ Election Petition 18 of 2013; [2013] KECA 282 (KLR) - (Explained)10\. _Matemu, Mumo v Trusted Society of Human Rights Alliance & 5 others_ Civil Appeal 290 of 2012; [2013] KECA 445 (KLR) - (Explained)11\. _Njihia v Kimani & another_ Civil Application 3 of 2014; [2015] KESC 19 (KLR) - (Explained)12\. _Rai & 3 others v Rai & 4 others_ Petition 4 of 2012; [2014] KESC 31 (KLR); [2014] 2 KLR 243 - (Explained)13\. _Salat v Independent Electoral and Boundaries Commission & 7 others_ Application 16 of 2014; [2014] KESC 12 (KLR) - (Mentioned)14\. _Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others_ Application 3 (E008) of 2022; [2022] KESC 25 (KLR) - (Explained)15\. _Sombo & others & 4 others (Suing on behalf of 15,000 individuals of Amwezi and Mrima Clans of the Duruma Community) v Nyari Investments (1998) Limited & 5 others_ Application E048 of 2023; [2024] KESC 14 (KLR) - (Explained)16\. _Waruhiu v Munene & another_ Civil Application 18 of 2020; [2021] KESC 42 (KLR) - (Explained)**Statutes**** _Kenya_** 1\. Constitution of Kenya In general- (Cited)2\. Court of Appeal Rules, 2022 (cap 9 Sub Leg) rule 42(b) - (Interpreted)3\. Supreme Court Act (cap 9B) section 3, 3A, 21(2) - (Interpreted)4\. Supreme Court Rules, 2020 (cap 9B Sub Leg) rule 15(2); 31; 33(2) - (Interpreted)Advocates _Mr Billy Kongere_ for the applicant _Mr Jackson Kisinga_ for the 1st respondent Ruling 1.Upon perusing the notice of motion application dated December 9, 2024 and filed on December 11, 2024 pursuant to sections 3, 3A and 21(2) of the [Supreme Court Act](/akn/ke/act/2011/7) and rules 15(2) and 31 of the [Supreme Court Rules](/akn/ke/judgment/kesc/2015/19), seeking extension of time to file an application to review the Court of Appeal’s ruling (Nyamweya, Lesiit & Odunga JJA) in Civil Application Sup No E001 of 2023, declining to grant certification to file an appeal before this court; 2.Upon reading the applicant’s grounds on the face of the application and his supporting affidavit sworn on December 9, 2024 wherein it is contended that: the applicant filed an originating motion dated January 11, 2024 seeking to review the Court of Appeal’s refusal to certify the matter for a further appeal to the Supreme Court; vide a ruling delivered on November 29, 2024 the said originating motion was struck out for having been filed out of time; and that the applicant, desirous of pursuing an appeal, can only do so upon extension of time by the honourable court; 3.Upon considering the applicant’s averments that: the delay in filing an electronic copy of the originating motion was because of the applicant’s former counsel’s mistaken but honest belief that the Christmas vacation period is excluded from computation of time as is the case in the High Court and the Court of Appeal; the delay of a further six (6) months in lodging hard copies of the originating motion was because of the applicant’s former counsel’s belief that given the shift to exclusive electronic filing in other courts, the Supreme Court too did not require hard copies of the pleadings; the delay is not inordinate; and that the intended application for certification if permitted to be filed has reasonable chances of succeeding and therefore should not be curtailed due to lapses by the applicant’s erstwhile legal advisors; 4.Considering the applicant’s further averments that: he was represented by the firm of Gikandi & Company Advocates at the High Court and the Court of Appeal; that after the Court of Appeal delivered its judgment on April 14, 2023 he instructed his counsel to file an appeal to the Supreme Court; he, however, came to learn from the Court of Appeal’s ruling on the application for certification delivered on December 8, 2023 that the advocates had delayed in seeking certification; the Court of Appeal overlooked the error and considered the application on merits and ultimately dismissed it; at the discovery of the oversight, he promptly sought alternative legal representation from the firm of Mwakisha & Company Advocates who filed the originating motion dated January 11, 2024 which was struck out by this court vide a ruling delivered on November 29, 2024; 5.Further noting the applicant’s contention that he has now learnt that the firm of Mwakisha & Company Advocates also made similar mistakes by filing the originating motion fifteen (15) days late and the hard copies of the same documents were only filed by his current counsel on record six (6) months after they ought to have been filed; that as a lay person he did not know the legal requirements; he changed advocates whenever it became known to him that his advocates had missed certain steps; that the mistakes of the advocates should not be the basis for locking him out; the delay is not inordinate and is excusable; and the respondents do not stand to suffer any prejudice if the extension of time sought is granted; 6.Taking into account the affidavit of Moses Mwakisha, Advocate sworn on December 9, 2024, who avers that: he received instructions from the applicant on December 11, 2023 to seek a review of the Court of Appeal’s ruling dated December 8, 2023; he required time to peruse the applicant’s documents as they were bulky; he was aware of the provision of rules 7 and 33 of the [Supreme Court Rules](https://new.kenyalaw.org/akn/ke/act/ln/2020/101/eng@2022-12-31), however, he wrongly believed that the exclusion of the Christmas vacation from computation of time applies to the Supreme Court, and therefore his honest belief was that he could file the originating motion by January 17, 2024, which was a mistake in his appreciation of the law; he did not file hard copies of the originating motion as he believed that the practice of only filing pleadings electronically cuts across all tiers of the courts; he only learnt of the error on July 15, 2024 once Billy Kongere, Advocate, who had instructions to take over the matter asked him for the stamped copies of the originating motion; this was an honest mistake by counsel for which he requests pardon for the applicant to have his day in court to pursue his application for certification; that the respondents have all along known that the applicant is desirous of receiving this court’s input on the specified issues; and that the respondents participated in the application that was struck out, and had no problem with the delay in the filing of the application; 7.Considering the applicant’s submissions dated December 9, 2024 and filed on December 11, 2024 where he cites the Court of Appeal decisions in [Attorney General v Law Society of Kenya & Central Organisation of Trade Unions (K)](/akn/ke/judgment/keca/2013/372) [2013] KECA 372 (KLR) and [Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission, Ismael Hashimi, Mathew Kipeme Lempurkel](/akn/ke/judgment/keca/2013/282) [2013] KECA 282 (KLR); this court’s decision in [County Executive of Kisumu v County Government of Kisumu & 8 others](/akn/ke/judgment/kesc/2017/16) [2017] eKLR; [Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others](/akn/ke/judgment/kesc/2014/12), SC Application No 16 of 2014; [2014] eKLR (Nicholas Salat case) and [Hassan Nyanje Charo v Khatib Mwashetani, Independent Electoral and Boundaries Commission, Juma Musa & Gideon Mwangangi Wambua](/akn/ke/judgment/kesc/2014/5) [2014] KESC 47 (KLR) and urges that the litigant has been more than zealous in the pursuit of his rights; 8.Upon reading the 1st respondent’s replying affidavit sworn by Faith Ndonga, its Debt Recovery Officer, on January 16, 2025 and filed on January 21, 2025 wherein she avers that: following the delivery of the judgment by the Court of Appeal on April 14, 2023 the applicant filed a notice of appeal dated April 24, 2024 and filed an application for leave to appeal to the Supreme Court on June 22, 2023, two months after the judgment, contrary to rule 42(b) of the [Court of Appeal Rules 2022](https://new.kenyalaw.org/akn/ke/act/ln/2022/40/eng@2022-12-31), with no explanation for the delay; and that the Court of Appeal in the ruling dated December 8, 2023 dismissed the application, inter alia, on this ground, and it did not overlook the delay as averred by the applicant; 9.Noting the 1st respondent’s further contention that: the judgment sought to be appealed was delivered on April 14, 2023 which is 1 year 8 months and 5 days before the filing of the instant application; the application for extension of time was filed after an inordinate delay which has not been sufficiently explained; the alleged errors of counsel were easily discoverable; that once counsel on record discovered the error on July 15, 2024 they ought to have filed the application for extension of time at that point instead of waiting for this court to dismiss the application then file the present application; ignorance of the law is no defence; the present application is an afterthought; the applicant has been indolent; the intended application for review of the Court of Appeal ruling dated December 8, 2023 has no chances of success for reasons that the applicant filed its application for certification before the Court of Appeal out of time hence allowing the instant application will not cure the delay in filing the application before the Court of Appeal; and that the issues raised by the applicant were not of public importance but merely advancing private interests; 10.Further considering the 1st respondent’s averments that it will be severely prejudiced if the application is allowed, by being subjected to escalating advocates’ costs on numerous applications filed by the applicant since the judgment was entered; that it had a legitimate expectation that litigation had come to an end noting that the matter commenced in the year 2010, which is now a period of over 14 years. The 1st respondent adds that the applicant has filed the following applications since the judgment of the Court of Appeal was delivered: notice of motion dated June 19, 2023 seeking certification by the Court of Appeal; originating motion dated January 11, 2024 seeking review; notice of motion dated July 17, 2024 to amend the application; and the instant application dated December 9, 2024 seeking extension of time. The 1st respondent urges that the application is not meritorious, it amounts to an abuse of the court process, the court ought not to grant the discretionary orders sought and it should be dismissed with costs; 11.Taking into Account the 1st respondent’s submissions dated January 16, 2025 and filed on January 21, 2025 wherein it avers that: the applicant has not met the criteria set out in the _Nicholas Salat_ case for reason that: the notice of appeal is defective as it was not transmitted to the Registrar of the Supreme Court pursuant to rule 36(3) and no proof has been shown that the same was transmitted to this court. To support this averment, it relies on this court’s decisions in [Bookpoint Limited v Guardian Bank Limited & ](/akn/ke/judgment/kesc/2021/73)[another](/akn/ke/judgment/kesc/2021/73) SC App No 4 (E006) of 2021 [2021] KESC 73 (KLR), and [Wilfrida Arnodah Itolondo v The Attorney General & 9 others](/akn/ke/judgment/kesc/2021/44) SC App No 3 (E005) of 2021 [2021] eKLR; and that the admission by the applicant’s counsel, Mr Mwakisha, of having failed/neglected to present physical copies of the application to the court, covers his failure to submit the notice of appeal; 12.The 1st respondent further relies on the Court of Appeal decision in [Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others](/akn/ke/judgment/keca/2013/445) [2013] eLKR where it was held that rules of procedure are the handmaiden of justice and ought not to be ignored; and this Court’s decision in [Joseph Sombo & others v Nyari Investment (1998) Limited & 5 others](/akn/ke/judgment/kesc/2024/14) Application No E048 of 2023 where it was held that the Court of Appeal having dismissed the application for certification as it was filed out of time, this court cannot move to review an application determined to be incompetent for want of procedure; 13.Considering the applicant’s further submissions dated February 6, 2025 and filed on February 7, 2025 as a rejoinder to the 1st respondent’s submissions wherein he contends that: his Notice of Appeal was filed within time, and that based on the decision in [Amollo v Wilson](/akn/ke/judgment/kesc/2023/77) [2023] KESC 77 (KLR), failure to file or transmit a notice of appeal on a matter of general public importance is not mandatory as it can be filed upon grant of certification; the Court of Appeal determined its application on merit notwithstanding its observation that it had been filed out of time, and therefore the circumstances are not the same as in the case of [Sombo & others v Nyari Investments](/akn/ke/judgment/kesc/2024/14) (supra) ; the applications filed by the applicant are not numerous but were necessary for the applicant to pursue his right to a fair hearing; and that any inconvenience of incurring legal costs can be remedied by an award of costs; 14.Noting that the 2nd respondent, despite service of the application neither filed a response, submissions nor participated in these proceedings; 15.Bearing in mind the provisions of rule 15(2) of the [Supreme Court Rules, 2020](/akn/ke/judgment/kesc/2015/19) which gives this court jurisdiction to extend the time limited by these rules or by any decision of the court; 16.We have considered the application, the affidavit in support, the responses and submissions filed, and now opine as follows:i.This court set the guiding principles for the grant of extension of time in the Nicholas Salat case as follows: extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; a party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; whether there will be any prejudice suffered by the respondents if the extension is granted; whether the application has been brought without undue delay; and whether in certain cases, like election petitions, public interest should be a consideration for extending time.ii.The Court of Appeal delivered its ruling on the applicant’s notice of motion seeking certification on December 8, 2023. Pursuant to rule 33(2) of the [Supreme Court Rules 2020](/akn/ke/judgment/kesc/2015/19), an aggrieved party may apply to the court for review within fourteen (14) days. The applicant therefore ought to have filed his application on or before December 22, 2023.iii.The applicant filed the originating motion dated January 11, 2024 on the e-filing platform on January 17, 2024 under Application No E001 of 2024 and thereafter filed the physical copies on July 25, 2024, which was over six (6) months after the filing of the electronic copy. In our ruling dated November 29, 2024 while striking out the application for reason that leave was not sought to file the application out of time, we expressly noted that in line with rule 12 of the [Supreme Court Rules 2020](https://new.kenyalaw.org/akn/ke/act/ln/2020/101/eng@2022-12-31), pleadings filed in the court must be in both printed and electronic form to be considered complete.iv.Applying the principles on extension of time set out in the [Nicholas Salat Case](/akn/ke/judgment/kesc/2014/12) to the instant application, we note that the reason for delay in complying with the court’s rules as averred by the applicant is that his former counsel had the honest belief that the exclusion of the Christmas vacation in computation of time applicable in the High Court and the Court of Appeal also applies to the Supreme Court. The applicant further avers that the hard copies of his originating motion were not filed as his former advocate believed that the practice of only filing electronically cuts across all tiers of the courts.v.This court has in several of its decisions, including in [Daniel Kimani Njihia v Francis Mwangi Kimani & another](/akn/ke/judgment/kesc/2015/19), [2015] eKLR and [Bookpoint Limited v Guardian Bank Limited & Guilders International Bank Limited](/akn/ke/judgment/kesc/2021/73) Application No 4 (E006) of 2021) [2021] KESC 73 (KLR), held that the only regime of law that governs proceedings before it is the [Constitution](/akn/ke/act/2010/constitution), the [Supreme Court Act](/akn/ke/act/2011/7), the [Supreme Court Rules](https://new.kenyalaw.org/akn/ke/act/ln/2020/101/eng@2022-12-31) and any Practice Directions. It is therefore disingenuous for the applicant’s counsel to aver that he had the mistaken belief that the practice in the superior courts below will apply for matters filed before the Supreme Court. It was imperative for the applicant’s counsel to acquaint themselves with the court’s rules before filing any pleadings before the court.vi.Whereas mistakes of counsel ought not to be visited upon a litigant as we held in [George Kang’ethe Waruhiu v Munene & another](/akn/ke/judgment/kesc/2021/42) (Civil Application 18 of 2020) [2021] KESC 42 (KLR); and [Karinga Gaciani & 11 others v Kimanga & another](/akn/ke/judgment/kesc/2023/23) (Application E004 of 2023) [2023] KESC 23 (KLR) (Karinga Gaciani case) there must be cogent and credible evidence that the applicant made concerted efforts or due diligence, through evidence or correspondence of the follow up with the advocates to pursue his rights. It is not enough for a party to simply blame the advocates on record for all manner of transgressions. As we held in [Karinga Gaciani Case](/akn/ke/judgment/kesc/2023/23), “Courts have always emphasized that parties have a responsibility to show interest in and to follow up on their cases even when they are represented by counsel, and it does not matter whether the party is literate or not.” The appellant changed his advocates on more than one occasion with a similar outcome.vii.It is also worth noting that the applicant avers that the errors in lack of compliance with the rules was discovered in July 2024. However, the application to seek extension was not filed up until this court made a determination on the originating motion in the ruling of November 29, 2024. It is therefore our holding that the delay in filing the application is inordinate and has not satisfactorily been explained. While it is appreciated that the appellant’s advocates might have been culpable, the present application in our view is a knee jerk reaction to our earlier ruling.viii.On the issue of transmission of the notice of appeal, this court has held in [Arvind Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others](/akn/ke/judgment/kesc/2022/25) SC Application No 3 (E008) of 2022 that rule 36(4) makes it optional to file a notice of appeal either before or after certification in a matter of general public importance, and that even though the notice of appeal submitted was not stamped or endorsed by the Court of Appeal, the same is not fatal.ix.On the question of costs, this court in [Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others](/akn/ke/judgment/kesc/2014/31), Sup Ct Petition No 4 of 2012; [2014] eKLR set the principles that guide the grant of costs. Generally, costs follow the event, however, it should not be used to punish the losing party, but to compensate the successful party for the trouble taken in prosecuting or defending a suit. Additionally, the award of costs is discretionary. We note that this matter did not proceed to hearing of the appeal on the merits. Each party shall therefore bear their own costs. 17.Consequently, for reasons aforesaid, we make the following orders:i.The notice of motion application dated December 9, 2024 and filed on December 11, 2024 be and is hereby dismissed; andii.Each party to bear their own costs.Orders accordingly. **DATED AND DELIVERED AT NAIROBI THIS 11 TH DAY OF APRIL, 2025.****............................****M. K. KOOME****CHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT****............................****P. M. MWILU****DEPUTY CHIEF JUSTICE & VICE PRESIDENT OF THE SUPREME COURT****..............................****S.C. WANJALA****JUSTICE OF THE SUPREME COURT****..................................****NJOKI NDUNGU****JUSTICE OF THE SUPREME COURT****.......................****I. LENAOLA****JUSTICE OF THE SUPREME COURT** I certify that this is a true copy of the originalRegistrar, Supreme Court of Kenya