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Court of AppealStruck OutCivil Application No. E028 of 2026 (Formerly KSM Civil Application No. E009 of 2025)

Jack Nyongesa (Suing as legal administrator of the estate of Zakayo Wekesa Mukhalisi) v Charles Walibwa Wekesa

Court of Appeal
22 May 2026
1,777 words in judgment
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The bottom line

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The Court of Appeal struck out an extension-of-time application because the appellant had no Certificate of Delay or evidence explaining the filing delay.

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 Nairobi (Nyamweya JA) on an application under Rule 4 for extension of time to lodge a memorandum and record of appeal against a judgment of the Environment and Land Court at Bungoma (E. Cherono J) delivered on 4th July 2024 in ELC Case No. 1 of 2020. The applicant, suing as administrator of the estate of Zakayo Wekesa Mukhalisi, filed a notice of appeal and letter bespeaking proceedings on 29th July 2024, but attributed the delay in assembling the record to difficulties accessing certified proceedings, which he said were procured on 6th December 2024; the application was filed on 20th January 2025. He relied on Leo Sila Mutiso, Salat and Utalii Transport. The respondent opposed, contending the applicant neither obtained nor explained the absence of a Certificate of Delay, without which no excluded period could be relied on. The court applied the Salat principles and Chemaringo, holding that the applicant's explanation was unsupported by evidence: no Certificate of Delay was provided and no follow-up correspondence with the Deputy Registrar was annexed. The application was therefore incompetent for want of a Certificate of Delay. Notably, the court struck out the application rather than dismissing it, expressly to allow the applicant an opportunity to put his house in order and avail the relevant documents. The application was struck out with costs to the respondent. The intended appeal was said to raise questions of succession, beneficial shares, trust and historical land injustices, but no view on its merits was expressed.

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 satisfied the Rule 4 threshold for extension of time to lodge a memorandum and record of appeal out of time
  2. 2.Whether the explanation for the delay in assembling the record of appeal was supported by evidence, including a Certificate of Delay
  3. 3.Whether the application should be dismissed or struck out

Key legal issues

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01

Whether the applicant's explanation for delay was sufficiently evidenced

Holding

The explanation was unsupported: no Certificate of Delay was obtained and no follow-up correspondence with the Deputy Registrar was annexed, so the application was incompetent.

Reasoning

The applicant averred that backlog of court work and difficulty accessing certified proceedings caused the delay, and that he wrote letters to the Deputy Registrar. However, no Certificate of Delay was provided and none of the alleged correspondence was annexed. Under Rule 84, time can only be excluded as certified by the registrar; without the certificate the explanation fails and the application cannot rely on any excluded period.

p. 13
02

Whether to dismiss or strike out the application

Holding

The court struck out rather than dismissed the application, to allow the applicant to cure the evidentiary gaps and re-approach the court.

Reasoning

Although the application failed for want of a Certificate of Delay and supporting evidence, the judge considered it appropriate to strike out rather than dismiss, preserving the applicant's opportunity to put his house in order and avail the relevant documents if there was indeed delay in accessing the typed proceedings.

p. 13

Legal principles established

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  • An appellant cannot rely on the proviso to Rule 84(1) excluding time for preparation of proceedings without a certificate from the registrar of the superior court certifying the time required.
  • Extension of time under Rule 4 is a discretionary, equitable remedy available only to a deserving party who lays a basis to the satisfaction of the court.
  • A satisfactory explanation for delay is the key to the court's discretionary favour; there must be valid and clear reasons upon which discretion can be favourably exercised.

Court orders

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  1. 1.The application dated 20th January 2025 is struck out
  2. 2.Costs of the application to the respondent

The bench

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

majority

Wrote the judgment

On appeal from
Environment and Land Court of Kenya at Bungoma
ELC Case No. 1 of 2020
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (application for extension of time to lodge an appeal)

Relief refused

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Extension of time to file and serve the Record of Appeal and Memorandum of Appeal and leave to lodge them out of time

No evidence supported the explanation for the delay; no Certificate of Delay was obtained or explained, rendering the application incompetent

p. 13

Costs of the application to abide the outcome of the intended appeal

The application was struck out with costs to the respondent instead

p. 13

Costs

Costs of the application 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.

The application dated 20th January 2025 is accordingly struck out, with costs to the respondent.
p. 13Final orders - disposition
There is therefore no evidence to support the explanation given by the applicant, and the application is also not competent for want of a Certificate of Delay.
p. 13Want of Certificate of Delay
It is for this reason that I have decided to strike out the application, as opposed to dismissing the same, to avail the applicant an opportunity to put his house in order
p. 13Strike out rather than dismissal
A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour.
p. 9Extension of time principles

Issues in the judgment

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minor

Judgment inconsistently refers to Rule 4 of the Court of Appeal Rules, 2010 (as cited by parties) and Rule 4 of the Court of Appeal Rules of 2022.

minor

Page numbering is inconsistent with the document length (pages marked 'of 7' but running to page 13).

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, "Jack Nyongesa (Suing as legal administrator of the estate of Zakayo Wekesa Mukhalisi) v Charles Walibwa Wekesa", Case Analysis (2026). Civil Application No. E028 of 2026 (Formerly KSM Civil Application No. E009 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2084/eng@2026-05-22

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