Moi University v Vishva Builders Limited (Civil Application E083 of 2025) [2026] KECA 33 (KLR) (23 January 2026) (Ruling)

Moi University v Vishva Builders Limited (Civil Application E083 of 2025) [2026] KECA 33 (KLR) (23 January 2026) (Ruling) Neutral citation: [2026] KECA 33 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Application E083 of 2025 JM Mativo, JA January 23, 2026 Between Moi University Applicant and Vishva Builders Limited Respondent (Being an application for extension of time to file notices of appeal out of time against the ruling of the High Court of Kenya at Eldoret (Wananda J. R. Anuro) dated 2nd February, 2024 & 1st March, 2024inELC No. E51 of 1999) Ruling 1.Moi University’s (the applicant’s) notices of appeal dated 5th February 2024 and 8th March 2024 respectively were struck out by this Court on 24th November 2025 and 25th November 2025 respectively. The applicant has now seeking two orders couched in the following words:a.This Honourable Court be pleased to grant an ex-parte order for leave to the Applicant to file the notices of appeal out of time against the Judgement and Ruling issued on 2nd February 2024 and 1st March 2024 respectively in Eldoret High Court No. 051 of 1999 and service thereof.b.This Honourable Court be pleased to issue an ex parte order for extension of time for filing the notices of appeal out of time against the Ruling and Judgement issued on 2nd February 2024 and 1st March 2024 respectively in Eldoret High Court No. 051 of 1999 and service thereof. 2.It is not clear why the applicant seeks ex parte orders at this stage. The respondent did not raise any issue with the prayers as framed. He instead addressed the application on its merits. 3.The application is premised on Rule 4, 5 (2) (b), 79, and 84 of the Court of Appeal Rules, 2022. It is supported by the grounds listed on its body and the supporting affidavit sworn on 24th November 2025 by Dorcas Mengich, the applicant’s Legal Officer. The salient grounds in support of the application are: (a) aggrieved by the Judgment dated 2nd February 2024 and ruling rendered on 1st March 2024, the applicant filed notices of appeal dated 5th February 2024 and 8th March 2024 respectively; (b) based on the said notices of appeal, an order stay of execution of the judgment was granted on 17th October 2024; (c) the applicant’s notices of appeal were struck out for want of service on 24th November 2025 in Civil Appeal No. 028 of 2025; (d) all along the applicant was assured that the rules regarding service of notice of appeal had been complied with by its erstwhile advocate; (e) the applicant has an arguable case that ought to be heard on merit and should execution issue, the substance of the appeal will be overtaken by events as nothing will be left to be litigated upon; (g) this Court has the discretion on such terms as it may be just to extend the time limited by the rules as long as there is a plausible reason for the delay. 4.The application is opposed vide replying affidavit sworn on 13th January 2026 by Harish Vekaria who is the respondent’s director on the following grounds: (a) the applicant has not given any reasons whatsoever for the failure to file and serve notices of appeal out of time; (b) in response to the respondent’s applications dated 7th April 2025 and 15th July 2025 seeking to strike out the notices of appeal, the applicant insisted that the notices of appeal were filed and served on time and there was no failure of compliance on its part; (c) the intended appeals are frivolous for the reason that the liability for the decretal sum of Kshs.185,500,068.00 was admitted by the applicant before the delivery of the Judgment of the High Court. 5.In support of the application, the applicant’s counsel filed written submissions dated 14th January 2026 substantially reiterating the contents of the applicant’s supporting affidavit and urging that the applicant had reasonable belief that the counsel on record had served the notice of appeal, as such mistakes of counsel should not be burdened on the applicant. Counsel also submitted that the instant application was filed timely, especially considering that there was correspondence by the previous counsel alluding that the notices were apt and compliant. 6.Counsel further maintained that whilst rules of procedure are not mere technicalities, some infractions may be discretionarily remedied as non-service of the notices of appeal has been satisfactorily explained and denoted as unintentional since it endeavoured and substantially complied with the rules. 7.In a nutshell, the crux of the applicant’s submissions are that the application is meritorious, that the reasonable reasons have been provided for the delay and that no prejudice will be occasioned to the respondents. Counsel cited several decisions in support of the said grounds, which I have earnestly considered. 8.In opposition to the application, the respondent’s counsel relied on the replying affidavit sworn by Harish Vekaria and written submissions dated 15th January 2026. Counsel maintained that the delay on the part of the applicant in this case is over one year and the delay has not been explained. Counsel relied on this Court’s decision in Mutiso v Mwangi [1999] 2 EA 231 and Mwenda Muthuri v Mama Day Nursery and Primary School Limited [2014] eKLR. He also maintained that the intended appeal is frivolous as the decretal sum of Kshs.185,500,068.00 was admitted by the applicant before delivery of Judgment and the said sum was received by the applicant on 11th September 2007 to pay to the respondent and it has unlawfully retained it. 9.I have considered the application, the affidavits on record and submissions by counsel and the law. The definite 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 file and serve its notices of appeal out of time against the Judgement and Ruling issued on 2nd February 2024 and 1st March 2024 respectively in Eldoret High Court No. 051 of 1999. 10.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 this discretion, the applicant must establish the foundation upon which the discretion should be exercised in his favour. In Leo Sila Mutiso v Rose Wangari Mwangi, Civil Application No. Nai.255 of 1997 (unreported) this Court stated:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of delay; secondly, the reason for delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.” 11.The Supreme Court, in the case of Fahim Yasin Twaha v Timamy Issa Abdalla & 2 Others [2015] eKLR stated:“As regards extension of time, this Court has already laid down certain guiding principles. In the Nick Salat case, it was thus held:“… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.”“… we derive the following as the underlying principles that a Court should consider in exercising such discretion:1.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;2.a party who seeks 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 on a case- to- case basis;4.where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;5.whether there will be any prejudice suffered by the respondents, if extension is granted;6.whether the application has been brought without undue delay; and7.whether in certain cases, like election petitions, public interest should be a consideration for extending time”. [emphasis supplied]. 12.In granting leave, the Court must balance the competing interests of the parties. (See this Court’s decision in M/SPortreitz Maternity v James Karanga Kabia Civil Appeal No. 63 of 1997). Equally important is the fact that the applicant must provide a satisfactory explanation for theperiod of delay. An unsatisfactory explanation will normally befatal to the application, irrespective of the prospects of success of the appeal. Condonation cannot be Heard for the mere asking. An applicant is required to make out a case entitling him/her to the Court’s indulgence by showing sufficient cause, and giving a full, detailed and accurate account of the causes of the delay. In the end, the explanation must be reasonable enough to excuse the default. 13.Equally important is the fact that an application for condonation must be filed without delay and/or as soon as an applicant becomes aware of the need to do so. Thus, where the applicant delays filing the application despite being aware of the need to do so or despite being put on notice, the Court may take a dim view absent a proper and satisfactory explanation for the further delays. 14.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 v Ram Kalewar Prasad Singh, [2006] 1 SCC 75 , procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. It its 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-recognised exceptions to the above principle. The Court listed the following exceptions:a.where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance;b.where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;c.where the non-compliance or violation is proved to be deliberate or mischievous;d.where the rectification of defect would affect the case on merits or will affect 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.” (Emphasis added) 15.An applicant for extension of time must show good and substantial reasons for the delay, and prima facie good cause why the intended appeal should be heard. Whilst the first leg requires a satisfactory justification, the second leg only requires one to show that the grounds of appeal are arguable. It is upon satisfaction of both the above that the Court will exercise its discretion to grant the application. 16.The word “may” deployed in rule 4 of the Court of Appeal Rules, 2022 is merely permissive and intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the court should tolerate a delay. Equally there would be cases where the Court must exercise its discretion against an applicant for want of any of the required ingredients or where it does not reflect “good cause” as understood in law. The expression “good cause” implies the presence of legal and adequate reasons. The phrase embraces no more than that which suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. 17.The “good cause” should be such as it would persuade the Court in exercise of its judicial discretion, to treat the delay as an excusable one. Rule 4 gives the Court enough power and discretion to apply the law in a meaningful manner, while assuring that the purpose of enacting such a law is not frustrated. The person applying for extension of time should show that besides acting bona fide, he had taken all possible steps within his/her power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is good enough that it could not have been avoided by the person by the exercise of due care and attention. 18.Granted, filing an appeal within a period of limitation is the rule and condonation of delay is an exception. While condoning the delay, the courts must be cautious and only on genuine reasons, the courts are empowered to condone the delay. The power of discretion to condone the delay is to be exercised judiciously and by recording reasons. The reasons furnished for condonation of delay must be candid and convincing. Therefore, the condonation of delay cannot be claimed as a matter of right but only on genuine reasons, the delay is to be condoned and not otherwise. For delay to be condoned, the reasons adduced must be properly pleaded, convincing and an acceptable and an explanation should be offered. The history of the litigation and the applicant’s conduct is a relevant consideration. Unless a proper explanation is offered, the courts will not exercise its discretion in the proper perspective to advance substantial justice. 19.This Court’s rules clearly stipulate the consequences for failure to take an essential step under the rules. Admittedly, procedural defects in pleadings are generally considered curable because the focus is on substantive justice. However, as the record shows, in this case the applicant’s present advocates Kipkorir Cheruioyot, Chivai & Kigen Advocates came on record with the consent of the previous advocates on 14th April 2025. The application seeking to strike out the notices of appeal was filed on 7th April 2025. The applicant filed a reply in opposition to the application for striking out dated 12th May 2025 sworn by its legal officer describing the application as inter alia utterly frivolous and unwarranted, and curiously maintaining that the notices of appeal were properly filed and proceedings applied for. Clearly, the applicant was put on notice regarding the procedural defects/omissions. Much as the applicant puts the blame on its previous advocates, the applicant’s legal officer swore the affidavit in opposition to the application for striking out. This leaves no doubt that the applicant had already been put on notice regarding the defect in its notices of appeal. (See Uday Shankar Triyar v Ram Kalewar Prasad Singh, (supra)).Had the applicant acted prudently, it could have moved the court at that point since the defenct had been drawn to its attention. It cannot be said that the applicant discovered the alleged omission by their advocate after this Court struck out its notices of appeal and the record of appeal on 25th November 2025. From the date the present advocates came on record, which was on 14th April 2025 to 25th November 2025 when the notices were struck out, the applicant had ample time to move the court to remedy the omission. Therefore, the application before me is an attempt to close the stable after the horses have bolted. 20.As was held in Yusuf Gitau Abdalla v The Building Centre (K) Ltd & 4 Others, Petition 23 of 2014:“Even as the Court seeks to do justice, it cannot be lost to it that despite having a conscience, it is a court of law and not of mercy. It is also bound by the law and more so [the Constitution](/akn/ke/act/2010/constitution) which binds all. The Petitioner cannot be excused even on the pretext that he did not know these jurisdictional boundaries. A reading of the documents he has submitted to this Court shows that he describes himself inter alia as a printing consultant by profession with the ability to speak seven languages. Be it as it may, it is a legal principle that ignorance of the law is no defence. Hence the petitioner cannot with any iota of excuse, claim he did not know this….” 21.I have said more than enough to demonstrate that I am not persuaded that, this is a proper case for me to exercise my discretion under Rule 4 to grant the orders sought. Accordingly, I hereby dismiss the applicant’s application dated 24th November 2025 with no orders as to costs. **DATED AND DELIVERED AT ELDORET THIS 23 RD DAY OF JANUARY, 2026.****J. MATIVO****JUDGE OF APPEAL** I certify that this is a true copy of the original.Signed.**DEPUTY REGISTRAR.**