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Court of AppealDismissedCivil Application E100 of 2026

Nyongesa v Gedi

Court of Appeal
25 September 2026
PGPM Gachoka
1,296 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal dismissed a bid to file a late appeal because a nearly ten-month delay was left largely unexplained.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Eldoret on a Notice of Motion dated 7th August 2026 by Richard Nyongesa seeking extension of time to file and serve a notice of appeal and record of appeal against the judgment of the Environment and Land Court at Kitale (Nzili, J) delivered on 15th October 2025, together with stay of execution of that judgment, the underlying decree in Kitale Chief Magistrate's Court MCELC No. 16 of 2019, and any warrant of arrest for taxed costs of Kshs 164,725. Before the merits, Gachoka, JA made two threshold rulings: the Civil Procedure Act and its rules do not apply to the Court of Appeal, which is governed solely by the Appellate Jurisdiction Act and the Court of Appeal Rules, 2022; and the stay prayers could only be heard by a three-judge bench, so they were neither considered nor determined. On the extension of time prayer under Rule 4, the court applied the Fakir Mohamed principles. The judgment was delivered on 15th October 2025 and the applicant attributed the delay to severe illness, producing a discharge summary showing discharge on 8th December 2025. However, the respondent showed the applicant appeared in good health before the Deputy Registrar on 4th April 2026. The application, filed 7th August 2026, came close to ten months after judgment and eight months after discharge - a delay the court found inordinate and unexplained. The application was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has made out a case for extension of time to file and serve a notice of appeal under Rule 4 of the Court of Appeal Rules, 2022
  2. 2.Whether the Court can determine the prayers for stay of execution given they require a three-judge bench

Key legal issues

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01

Whether the delay of close to ten months in filing the notice of appeal was adequately explained

Holding

The delay was inordinate and unexplained; the medical discharge summary only accounted for the period up to 8th December 2025, yet the applicant appeared in good health before the Deputy Registrar on 4th April 2026 and filed the application only on 7th August 2026.

Reasoning

The court applied the Fakir Mohamed principles: length of delay, reason for delay, arguability and prejudice. The discharge summary explained delay only to December 2025. The applicant's appearance in good health at a notice-to-show-cause hearing on 4th April 2026 undermined the incapacity claim, leaving roughly eight months unexplained.

p. 3
02

Whether the Court could entertain the stay of execution prayers

Holding

The Court declined to determine the stay prayers because under the Court of Appeal Rules, 2022 such an application must be heard by a three-judge bench.

Reasoning

The single judge held that stay of execution applications under the 2022 Rules are reserved for a three-judge bench, so he neither considered the facts nor determined those prayers, confining himself to the extension of time prayer under Rule 4.

p. 2

Legal principles established

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  • The Court of Appeal is a creature of the Appellate Jurisdiction Act; the Civil Procedure Act and its rules do not apply to it.
  • An application for stay of execution pending appeal under the Court of Appeal Rules, 2022 can only be heard by a three-judge bench.

Court orders

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  1. 1.The application is dismissed with costs to the respondent
  2. 2.The Court declined to determine the stay of execution prayers, holding they can only be heard by a three-judge bench

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PG
majority

Wrote the judgment

On appeal from
Environment and Land Court at Kitale
ELC Suit No. E011 of 2023
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022 (Appellate Jurisdiction Act)

Relief refused

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Extension of time to file and serve notice of appeal and record of appeal

Delay of close to ten months was inordinate and unexplained; illness explanation did not cover the period after discharge from hospital

p. 3

Stay of execution of the ELC judgment and decree and stay of any warrant of arrest for taxed costs

Under the Court of Appeal Rules, 2022 such an application can only be heard by a three-judge bench

p. 2

Costs

The application is dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, I find that the applicant does not deserve the exercise of discretion of this Court in his favour. The application is dismissed with costs to the respondent.
p. 3Final orders - dismissal of extension of time application
The applicant has failed to give a good reason for the failure to file the application after he was discharged from the hospital.
p. 3Unexplained inordinate delay
For that reason, the provisions of the Civil Procedure Act and its rules do not apply to this Court.
p. 2Applicable procedural framework - Appellate Jurisdiction Act

Issues in the judgment

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minor

Judgment caption refers to ELC Suit No. E011 of 2023 while prayers refer to ELC Appeal No. E011 of 2023 for the same decision

minor

Reliefs are numbered (a)-(d) but the ruling refers to 'prayers (3) and (4)' when addressing stay

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nyongesa v Gedi", Case Analysis (2026). Civil Application E100 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1711/eng@2026-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.