Lifeserve Ltd v Rubis Energy Kenya [2026] KEHC 16948 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL DIVISION (APPELLATE SIDE)

CIVIL APPEAL NO. E011 OF 2025

BETWEEN

LIFESERVE LIMITED…………..…………………..……………..………..APPELLANT

AND

RUBIS ENERGY KENYA……………………........................................RESPONDENT

RULING

1. Before the court for determination is the Respondent’s Preliminary Objection dated 16th March 2026 that states that the present appeal offends the mandatory provisions of section 38 of the Small Claims Court Act (Chapter 10A of the Laws of Kenya) as read with section 79G of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) having been filed on 4th November 2025 and it relates to a decision of the Small Claims Court made on 14th August 2025. The Respondent thus urges the court to strike out the appeal with costs to it. The Objection has been canvassed by way of written submissions that I have considered in this determination.

2. I am in agreement with the Respondent’s submission that in a preliminary objection, the facts pleaded by the other party are assumed to be correct, the objection must be a matter of law which is capable of disposing off the suit, the objection cannot be blurred by factual details calling for evidence and the objection must not call upon the court to exercise discretion (see Mukisa Biscuits Manufacturing Co. Limited vs West End Distributors (1969) EA 696)].

3. Since the present appeal arose from the Small Claims Court, I note that the jurisdiction of this court to deal with such appeals is donated by section 38 of the Small Claims Court Act as read with Rule 30 of the Small Claims Court Rules. The law provides that an appeal to this Court shall be in accordance with Order 42 of the Civil Procedure Rules. It is also not in contest that section 79G of the Civil Procedure Act provides for a 30-day timeline for filing an appeal. The Appellant submits that it filed the Memorandum of Appeal on 12th September 2025, which was within the 30-day window but there was a delay in formal registration due to systemic/technical challenges with the Judiciary e-filing payment system, which kept bouncing back. It relies on the decision of Kenya Breweries Limited v Muriithi; Office of the Data Protection Commissioner (Interested Party) [2025] KEHC 9990 (KLR) for the proposition that a delay caused by circumstances beyond the appellant's control is excusable.

4. It further submits that under Article 159(2)(d) of the Constitution, section 3A of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules, the court should exercise its discretion to enlarge time in the interest of justice, given the delay was not inordinate. On its part, the Respondent submits that the decision of the Small Claims Court was delivered on 14th August 2025 and the appeal should have been filed by 14th September 2025 but it was filed on 4th November 2025, which was 70 days late. That the Appellant never applied for extension of time under the proviso to section 79G and citing the Supreme Court decision in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), the Respondent avers that timely filing is a jurisdictional prerequisite, not a procedural technicality and that an appeal filed out of time without leave is a nullity. It further submits that section 3A cannot be used to circumvent the mandatory timelines in section 79G and that the proper procedure was to seek leave to appeal out of time.

5. When this court (Mrima J.,) was faced with a similar objection in Ngugi v Njeru [2026] KEHC 655 (KLR) it held as follows:

19. Section 79G of the Civil Procedure Act provides the 30-day timeline for filing an appeal. The Respondent contended that the 70-day delay was well outside the statutory limit. The Respondent’s reliance on the Supreme Court authority in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR is central. That case established that the timely filing of an appeal is not a procedural technicality but a fundamental step. Essentially, an appeal filed out of time, without a valid order (leave) extending time, is a nullity. In the case the learned Supreme Court Judges approvingly made reference to the decision of the Supreme Court of California in the case of Silverbrand v County of Los Angeles [2009] 46 Cal. 4th 106 where the following was said;

“As noted by the Court of Appeal, the filing of a timely notice of appeal is a jurisdictional prerequisite.

Unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal.”

(Sic) The purpose of this requirement is to promote the finality of judgements by forcing the losing party to take an appeal expeditiously or not at all.”

20. Whereas the Appellant acknowledged the delay in the submissions, he urged this Court to invoke its inherent jurisdiction under Section 3A of the Civil Procedure Act. However, this Court is cautious to note that the inherent jurisdiction contemplated under Section 3A cannot be invoked to override an express statutory provision of Section 79G of the Civil Procedure Act. A time limit for filing an appeal set by a statute is not a mere procedural technicality. It is a substantive and mandatory requirement that goes to the very root of a court’s authority to hear the matter. In this Court’s assessment, the proper procedure was for the Appellant to, alongside the stay application, contemporaneously seek orders for leave to enlarge time to lodge the appeal and lay a basis to the satisfaction of this Court why discretion to extend time should be exercised in its favour.

21. A litigant must not take it for granted that a Court will as a matter of right extend time without laying a basis. In Michael Kinyanjui Mbuthia v John Kamau Nganga HCCA 322 of 2008, the Court was categorical that an appeal filed out of time could only be deemed duly filed if leave of Court is sought to that effect. In the Nick Salat case (supra) the learned Supreme Court Judges fortified the foregoing in the following terms: -

“…it is incumbent on the Applicant for an extension of time to provide the court with a full, honest and acceptable explanation of the reasons for the delay. He cannot reasonably expect the discretion to be exercised in his favour, as a defaulter, unless he provides an explanation for the default. (emphasis added).

22. Therefore, in absence of such an application, the Appellant’s appeal, having been filed 70 days after judgment without any justification or explanation and without an application for leave to file it out of time, is fatally defective. The delay, without any reason, is indicative of lack of diligence and is an abuse of Court process. Following the Supreme Court decision in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others (supra), this Court must find that the Memorandum of Appeal filed on 14th July 2025, is a nullity and of no legal effect.

23. This Court must also note that the whole objective of establishing the Small Claims Court is to expedite the resolution of disputes. The Learned Apex Judges in the above case observed thus;

…. Time is a crucial component in dispensation of justice, hence the maxim: Justice delayed is justice denied. It is a litigants’ legitimate expectation where they seek justice that the same will be dispensed timeously. Hence, the various constitutional and statutory provisions on time frames within which matters have to be heard and determined.

24. It follows, therefore, that the application for a stay of execution is brought pending the hearing and determination of an incompetence appeal filed. Since the appeal is a legal nullity, then here is no valid appeal pending before the Court.

6. I am in agreement with the aforementioned dicta that the 30-day timeline in section 79G is mandatory, an appeal filed out of time without a valid order extending time is a nullity, the inherent jurisdiction under section 3A cannot override the express statutory provision of section 79, a litigant must seek leave to appeal out of time and lay a basis for the exercise of discretion and the court must find that a Memorandum of Appeal filed out of time without leave is a nullity and of no legal effect.

7. The Appellant's argument that the Memorandum of Appeal was "filed" on 12th September 2025 is not supported by the record. A Memorandum of Appeal is deemed to have been filed upon payment of the requisite court fees and a case number assigned. The Appellant admits that the case number was only issued after payment was eventually processed in November 2025. I find that the Appellant's reliance on Kenya Breweries Limited(supra) is misplaced because in that case, the delay was occasioned by the court's own system failure and the appellant therein had actively sought leave. In this case, the Appellant has not sought leave at all to explain the delay which, even if I am to assume was partly attributable to systemic issues, was not solely the court's fault. The Appellant had 30 days to pay and the payment issues apparently persisted for weeks without the Appellant seeking alternative remedies or applying for extension of time.

8. It is for the above reasons that I find that the Respondent’s Objection is merited. The appeal was filed out of time, no leave was sought or obtained and the court's inherent jurisdiction cannot be invoked to override the mandatory provisions of section 79G of the Civil Procedure Act. Following the decision in Salat(supra), the appeal is a nullity and it is now struck out with costs to the Respondent.

DATED SIGNED AND DELIVERED virtually this 27th DAY OF OCTOBER

2026

............................................................................

J W W MONGARE

JUDGE

In the presence of;

1. N/A for the Appellant

2. N/A for the Respondent

3. Abdisalan- Court Assistant