Joyce & another v Ngaburia

3. I must say that an omnibus application is incapable of proper adjudication by the Court. Apart from the fact that each of the reliefs sought is governed by dierent provisions of the Court of Appeal Rules, each is also subject to well-established and distinct judicial principles which an applicant must satisfy before the Court can consider granting the reliefs sought. See. Boro vs. Githunguri & 3 Others (Suing as Administrators of the Estate of Mugacha Thaara Deceased) [2023] KECA 889 (KLR). 4. In the present application, the applicants seek orders that fall within the jurisdiction of a single Judge alongside orders that can only be determined by a full bench of the Court. In my considered view, an application ought not to amalgamate reliefs that are exercisable under the distinct jurisdiction provided for under rule 4 and 5 (2)(b) of the Court of Appeal Rules, the same ought to be pursued separately. 5. As was stated by the Supreme Court in Aviation & Allied Workers Union Kenya vs. Kenya Airways Ltd & 3 Others [2015] eKLR: “A party who moves the Court, has to cite the specic provision(s) of the law that clothes the Court with the jurisdiction invoked. It is improper for a party in its pleadings, to make ‘omnibus’ applications, with ambiguous prayers, hoping that the Court will grant at least one.” 6. Nevertheless, while such an application is undoubtedly disorderly and procedurally inelegant, it is not one that is expressly prohibited by the Rules. Accordingly, I will only address the orders sought with regards to rule 4 which falls within the jurisdiction of a single Judge. 7. The application is supported by the grounds on its face and the supporting adavit of the 1st applicant sworn on the even date. The 1st applicant avers that the judgment from which they intend to appeal was delivered on 22nd May, 2023 but the notice of appeal was led out of time, on 12th July, 2023, because he had travelled to his rural home and could not be traced for purposes of instructing his advocate. By the time he was traced, the period within which to le the notice of appeal had already lapsed. He further avers that they have an arguable appeal raising substantial issues of law and fact as set out in the draft memorandum of appeal and urges the Court to exercise its discretion in their favor to enable them prosecute the intended appeal. 8. The application is unopposed. 9. Although served with a hearing notice on 2nd June, 2026 with instructions that the application will be disposed by way of written submissions and parties reminded to comply with the directions issued on service and ling of written submissions, parties have not complied. 10. I have carefully considered the application. The power of this Court to extend time is provided for under rule 4 of the Rules. This power is discretional and unfettered. The principles that are applicable for such an application are well settled. In Fakir Mohamed vs. Joseph Mugambi & 2 Others [2005] KECA 340 (KLR) it was stated as follows; “ The exercise of this Court’s discretion under rule 4 has followed a well-beaten path since the structure of “sucient reason” was removed by amendment in 1985. As it is unfettered, 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 eect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance- are all relevant but not exhaustive factors: See Mutiso vs. Mwangi https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1826/eng@2026-09-25 2

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Civil Appl. NAI. 255 of 1997 (ur), Mwangi vs. Kenya Airways Ltd (2003) KLR 486, Major Joseph Mwereri Igweta vs. Murika M’Ethare & Attorney General Civil Appl. NAI 8/2000 (ur) and Murai Vs. Wainaina (No 4) (1982) KLR 38.” 11. The impugned judgment was delivered on 22nd May, 2023 and as per rule 77(2) of the Rules, the applicants were required to lodge their notice of appeal within fourteen (14) days after the date of the judgment, that is, 4th June, 2023. The notice of appeal was lodged on 12th July, 2023, thirty-nine (39) days after the lapse of the fourteen days. The reason given for the delay was that the 1st applicant had travelled to her rural home and could not be traced by his advocate to obtain instructions. There is no evidence placed before this Court to show what steps were taken by the applicants’ advocate in tracing the 1st applicant. Further, by a perusal of the notice of appeal, I notice that the 1st and 2nd applicants jointly appealed against the said judgment. No reason is given as to why instructions could only be obtained from the 1st applicant but not the 2nd applicant. 12. This Court has in numerous decisions stated that although the law does not set out the minimum or maximum period of delay, it is important that the applicant gives satisfactory explanation to enable Court to exercise its discretion in his/her favor. See. Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] KECA 701 (KLR). 13. The question is whether the explanation given is satisfactory? I note the applicant did not disclose which home area she had gone to. That notwithstanding, I take recognizance of the fact that some areas in this country are remote and communication is not always reliable. Such an explanation is reasonable in the circumstances and therefore acceptable. Next, I will proceed to consider the other factors as held in the case of Abdul Aziz Ngoma vs. Mungia Mathayo & Another [1976] KECA 16 (KLR) that; “ We would like to state once again that this Court’s discretion to extend time under rule 4 only comes into existence after “sucient reason” for extending time has been established and it is only then that other considerations such as absence of any prejudice and the prospects or otherwise of success in the appeal can be considered.” 14. I see that the application was unopposed. Further, the respondent does not, in my view stand to suer any prejudice. In addition and equally important, I nd that the delay of thirty-nine (39) days is not inordinate. For the foregoing reasons, I nd the notice of motion dated 12th July, 2023 is merited. I make the following orders: 1. The notice of motion application dated 12th July, 2023 be and is hereby allowed; 2. The applicants are granted extension of time to le the notice of appeal against the decision of A. N. Ongeri J. delivered/issued on 22nd May 2023 in Milimani HCCA E128 OF 2021; 3. The notice of appeal dated 12th July, 2023 and led on 12th July, 2023 be deemed to have been duly led upon payment of the requisite fees; 4. The applicants do serve the notice of appeal upon the respondents within 21 days from the date of this ruling; 5. The applicants draft memorandum of appeal annexed to the supporting adavit and marked MNJ4 dated 17th July, 2023 be led and served within 21 days from the date of this ruling. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026 J. LESIIT https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1826/eng@2026-09-25 3

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...................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1826/eng@2026-09-25 4

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