Background and Introduction
1. Before the Court is an application filed by the plaintiff dated 7th March 2024 brought under Section 3A of the Civil Procedure Act as well as Order 49 Rule 1 and Order 50 Rule 6 of the Civil Procedure Rules. The applicant seeks a 45-day extension of time to comply with the judgment of this Court issued on 7th February 2025, which directed that a proper accounting under the Musharaka financing agreement be completed within 30 days. The applicant also seeks directions on how the accounting should be conducted, proposing that the Deputy Registrar or a court-annexed mediator oversee the process.
2. The application is supported by an affidavit sworn by ALEXIUS SAPARII, the applicant’s treasurer, who explains that the applicant engaged an auditor and provided relevant documentation following the judgment. However, efforts to involve the respondent in the process, including a letter dated 27th February 2025 and a meeting on 5th March 2025, did not yield an agreed mechanism for conducting the accounting.
3. The applicant notes that the auditor requires at least two additional weeks to complete the task and, in light of the approaching deadline and lack of cooperation from the respondent, seeks the Court’s intervention to extend time and facilitate the process.
4. The respondents, through an affidavit sworn on 26th May 2025 have opposed the application. The respondents confirm that the Court, on 4th May 2020, issued conditional injunctive relief requiring the applicant to pay Kshs. 750 million within 60 days, a condition they failed to meet. The matter proceeded to full hearing, and on 7th February 2025, the Court delivered judgment in favour of the applicant. The respondent is dissatisfied with the outcome, and confirms that it has filed an appeal being Civil Appeal No. E262 of 2025 and also lodged a stay application before the Court of Appeal.
5. The respondent further contends that the present application is moot, as the ex parte extension previously granted has expired and the applicant did not seek a further extension within time. The respondent argues that the issues raised are now sub judice, given that they are actively pending before the appellate court. According to them, the reliefs now sought, such as court-annexed mediation and a fresh accounting exercise, exceed the scope of the judgment and should have been pursued through proper post-judgment procedures, such as a formal chamber summons.
6. The respondent also challenges the applicant’s decision to appoint an auditor without prior consultation or mutual agreement, contrary to the parties’ contractual terms. They maintain that the applicant has failed to provide credible justification for the orders sought. On that basis, the respondents urge the Court to dismiss the application with costs.
Analysis and Determination
7. I have carefully considered the application and the respondent’s response. The core issue for determination is whether the applicant has established a sufficient basis for the orders sought, primarily, an extension of time and directions on how the court-ordered accounting should be conducted.
8. The applicant seeks an extension of time to comply with paragraph (ii) of the judgment delivered on 7th February 2025, which directed that accounts be taken under the Musharaka financing agreement within 30 days in order to ascertain the precise sums due. In addition, the applicant seeks the Court’s guidance on the appropriate modalities for conducting the accounting exercise and proposes that either the Deputy Registrar or a court-annexed mediator be appointed to oversee the process.
9. It is not in dispute that the said judgment indeed required a proper accounting to be undertaken within 30 days. That timeline has since lapsed without the exercise being concluded. Despite the applicant’s demonstrable efforts to initiate the process, the parties have failed to reach consensus on the framework for conducting the accounting. This has as a result stalled compliance with the Court’s directive within the timeframe ordered.
10. The power to extend time is vested in the Court under Order 50 Rule 6 of the Civil Procedure Rules. The provision states:
“Where a limited time has been fixed for doing any act or taking any proceeding under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require...”
11. The guiding principles for the exercise of this discretion have been set out in various decisions. In Fakir Mohammed V Joseph Mugambi & 2 Others, Civil Appln No. 332 of 2004, the Court of Appeal emphasized:
“The exercise of discretion to extend time is unfettered and there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, possibly the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the effect of the delay on public administration, the importance of compliance with time limits, the resources of the parties, and whether the matter raises issues of public importance are all relevant considerations.”
12. The discretion to extend time is therefore broad, and must be exercised judiciously with due regard to the circumstances of each case. From the evidence on record, the applicant has since made genuine efforts to comply with the judgment. It promptly engaged an auditor, reached out to the defendant through written communication, and attempted to convene a consultative meeting. These steps show a commitment to complying with the Court’s directives.
13. In contrast, the respondent has shown no meaningful engagement or willingness to cooperate in facilitating the reconciliation of accounts. While the respondent has expressed dissatisfaction with the applicant’s unilateral appointment of an auditor, it has not proposed an alternative or taken any steps to move the process forward. Importantly, the plaintiff already holds a judgment in its favour, and continued delays in implementing the Court’s orders only serve to frustrate the enforcement of that judgment and prolong the resolution of the dispute.
14. This Court has a duty to uphold substantive justice and must not permit avoidable delays to undermine the enforcement of its orders. This obligation is even more compelling in the present case, given the respondent’s own acknowledgment that no stay orders have been issued by the Court of Appeal to bar or suspend proceedings before this Court.
15. As the Court emphasized in Equity Bank Limited V West Link MBO Ltd, Civil Appln. No. 78 of 2011:
“Courts of law exist to administer justice and in doing so, they must of necessity balance between the competing rights and interests of different parties but within the confines of the law, to ensure the ends of justice are met. Inherent power is the authority possessed by a Court implicitly without it being derived from the Constitution or statute.”
16. I am satisfied that the applicant has acted in good faith and has offered a credible explanation for the delay in complying with the Court’s orders. The reliefs sought are not intended to reopen the case but to give effect to a judgment already rendered and to ensure its meaningful execution. Refusing to grant the extension would render the Court’s orders ineffectual and risk stalling the final resolution of the dispute, which hinges on the outcome of the reconciliation of accounts.
17. Conversely, granting a limited extension of time, coupled with clear directions on how the accounting should proceed, will advance the cause of justice and promote efficient determination of the remaining issues. Accordingly, I find that the orders sought in the application are warranted and merited.
Disposition
18. Accordingly, the following orders hereby issue:
i. The applicant is granted an extension of 45 days from the date of this ruling to comply with paragraph (ii) of the judgment delivered on 7th February 2025, which directed the reconciliation of accounts under the Musharaka financing agreement.
ii. Given the technical complexity of the issues involved, particularly the specialized accounting principles applicable to Musharaka-based Islamic financing, I find it unsuitable to entrust the task to the Deputy Registrar or a court-annexed mediator.
iii. Instead, the Chairperson of the Institute of Certified Public Accountants of Kenya (ICPAK) shall, within seven (7) days of service of this Ruling by the applicant, nominate a qualified and independent Certified Public Accountant with demonstrable expertise in Islamic finance to oversee and conduct the reconciliation of accounts within 45 days from the date of their appointment. The costs of the reconciliation process shall be borne equally by the parties.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 18TH DAY OF JULY 2025.
F. MUGAMBI
JUDGE
1. Before the Court is an application filed by the plaintiff dated 7th March 2024 brought under Section 3A of the Civil Procedure Act as well as Order 49 Rule 1 and Order 50 Rule 6 of the Civil Procedure Rules. The applicant seeks a 45-day extension of time to comply with the judgment of this Court issued on 7th February 2025, which directed that a proper accounting under the Musharaka financing agreement be completed within 30 days. The applicant also seeks directions on how the accounting should be conducted, proposing that the Deputy Registrar or a court-annexed mediator oversee the process.
2. The application is supported by an affidavit sworn by ALEXIUS SAPARII, the applicant’s treasurer, who explains that the applicant engaged an auditor and provided relevant documentation following the judgment. However, efforts to involve the respondent in the process, including a letter dated 27th February 2025 and a meeting on 5th March 2025, did not yield an agreed mechanism for conducting the accounting.
3. The applicant notes that the auditor requires at least two additional weeks to complete the task and, in light of the approaching deadline and lack of cooperation from the respondent, seeks the Court’s intervention to extend time and facilitate the process.
4. The respondents, through an affidavit sworn on 26th May 2025 have opposed the application. The respondents confirm that the Court, on 4th May 2020, issued conditional injunctive relief requiring the applicant to pay Kshs. 750 million within 60 days, a condition they failed to meet. The matter proceeded to full hearing, and on 7th February 2025, the Court delivered judgment in favour of the applicant. The respondent is dissatisfied with the outcome, and confirms that it has filed an appeal being Civil Appeal No. E262 of 2025 and also lodged a stay application before the Court of Appeal.
5. The respondent further contends that the present application is moot, as the ex parte extension previously granted has expired and the applicant did not seek a further extension within time. The respondent argues that the issues raised are now sub judice, given that they are actively pending before the appellate court. According to them, the reliefs now sought, such as court-annexed mediation and a fresh accounting exercise, exceed the scope of the judgment and should have been pursued through proper post-judgment procedures, such as a formal chamber summons.
6. The respondent also challenges the applicant’s decision to appoint an auditor without prior consultation or mutual agreement, contrary to the parties’ contractual terms. They maintain that the applicant has failed to provide credible justification for the orders sought. On that basis, the respondents urge the Court to dismiss the application with costs.
Analysis and Determination
7. I have carefully considered the application and the respondent’s response. The core issue for determination is whether the applicant has established a sufficient basis for the orders sought, primarily, an extension of time and directions on how the court-ordered accounting should be conducted.
8. The applicant seeks an extension of time to comply with paragraph (ii) of the judgment delivered on 7th February 2025, which directed that accounts be taken under the Musharaka financing agreement within 30 days in order to ascertain the precise sums due. In addition, the applicant seeks the Court’s guidance on the appropriate modalities for conducting the accounting exercise and proposes that either the Deputy Registrar or a court-annexed mediator be appointed to oversee the process.
9. It is not in dispute that the said judgment indeed required a proper accounting to be undertaken within 30 days. That timeline has since lapsed without the exercise being concluded. Despite the applicant’s demonstrable efforts to initiate the process, the parties have failed to reach consensus on the framework for conducting the accounting. This has as a result stalled compliance with the Court’s directive within the timeframe ordered.
10. The power to extend time is vested in the Court under Order 50 Rule 6 of the Civil Procedure Rules. The provision states:
“Where a limited time has been fixed for doing any act or taking any proceeding under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require...”
11. The guiding principles for the exercise of this discretion have been set out in various decisions. In Fakir Mohammed V Joseph Mugambi & 2 Others, Civil Appln No. 332 of 2004, the Court of Appeal emphasized:
“The exercise of discretion to extend time is unfettered and there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, possibly the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the effect of the delay on public administration, the importance of compliance with time limits, the resources of the parties, and whether the matter raises issues of public importance are all relevant considerations.”
12. The discretion to extend time is therefore broad, and must be exercised judiciously with due regard to the circumstances of each case. From the evidence on record, the applicant has since made genuine efforts to comply with the judgment. It promptly engaged an auditor, reached out to the defendant through written communication, and attempted to convene a consultative meeting. These steps show a commitment to complying with the Court’s directives.
13. In contrast, the respondent has shown no meaningful engagement or willingness to cooperate in facilitating the reconciliation of accounts. While the respondent has expressed dissatisfaction with the applicant’s unilateral appointment of an auditor, it has not proposed an alternative or taken any steps to move the process forward. Importantly, the plaintiff already holds a judgment in its favour, and continued delays in implementing the Court’s orders only serve to frustrate the enforcement of that judgment and prolong the resolution of the dispute.
14. This Court has a duty to uphold substantive justice and must not permit avoidable delays to undermine the enforcement of its orders. This obligation is even more compelling in the present case, given the respondent’s own acknowledgment that no stay orders have been issued by the Court of Appeal to bar or suspend proceedings before this Court.
15. As the Court emphasized in Equity Bank Limited V West Link MBO Ltd, Civil Appln. No. 78 of 2011:
“Courts of law exist to administer justice and in doing so, they must of necessity balance between the competing rights and interests of different parties but within the confines of the law, to ensure the ends of justice are met. Inherent power is the authority possessed by a Court implicitly without it being derived from the Constitution or statute.”
16. I am satisfied that the applicant has acted in good faith and has offered a credible explanation for the delay in complying with the Court’s orders. The reliefs sought are not intended to reopen the case but to give effect to a judgment already rendered and to ensure its meaningful execution. Refusing to grant the extension would render the Court’s orders ineffectual and risk stalling the final resolution of the dispute, which hinges on the outcome of the reconciliation of accounts.
17. Conversely, granting a limited extension of time, coupled with clear directions on how the accounting should proceed, will advance the cause of justice and promote efficient determination of the remaining issues. Accordingly, I find that the orders sought in the application are warranted and merited.
Disposition
18. Accordingly, the following orders hereby issue:
i. The applicant is granted an extension of 45 days from the date of this ruling to comply with paragraph (ii) of the judgment delivered on 7th February 2025, which directed the reconciliation of accounts under the Musharaka financing agreement.
ii. Given the technical complexity of the issues involved, particularly the specialized accounting principles applicable to Musharaka-based Islamic financing, I find it unsuitable to entrust the task to the Deputy Registrar or a court-annexed mediator.
iii. Instead, the Chairperson of the Institute of Certified Public Accountants of Kenya (ICPAK) shall, within seven (7) days of service of this Ruling by the applicant, nominate a qualified and independent Certified Public Accountant with demonstrable expertise in Islamic finance to oversee and conduct the reconciliation of accounts within 45 days from the date of their appointment. The costs of the reconciliation process shall be borne equally by the parties.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 18TH DAY OF JULY 2025.
F. MUGAMBI
JUDGE