Ongatta v Omulo & another

memorandum of appeal attached to the instant application. He urged that granting leave will be in the interest of justice. 3. This application was listed before me on 16th September, 2026 as a chamber matter in the absence of the parties or their advocates. It is for determination based on the material on record. 4. The applicant led written submissions dated 21st July, 2025. He urged that Justice Otieno-Odek elaborated on the power to grant extension of time for ling appeals in Edith Gichugu Koine v. Stephen Njagi Thoiti [2014] (KLR). He noted that the delay in ling the appeal was occasioned by his former advocate’s mistake, as was elaborated in his application dated 12th July, 2024. That this Honourable Court has, in a plethora of decisions, decided that the mistake of an advocate cannot be visited on an innocent litigant, and that the overriding objectives provided under Sections 3A and 3B of the Appellate Jurisdiction Act are to breathe life into substantive justice (see Patriotic Guards Ltd v James Kipchirchir Sambu [2018] КЕСА 799 (KLR); Vishva Stone Suppliers Company Limited v RSR Stone [2006] Limited [2020] КЕСА 361 (KLR); Owino Ger v Marmanet Forest Co-operative & Credit Society Ltd [1987] eKLR; CFC Stanbic Limited v John Maina Githaiga & another [2013] eKLR; Lee G. Muthoga v Habib Zurich Finance (K) Ltd & another, Civil Application No. NAI 236 of 2009; and Catherine Njuguini Kanya & 2 others v Commercial Bank of Africa Ltd, Civil Application No. NAI 366 of 2009). 5. In opposition to the application, the respondents led submissions dated 10th September, 2026. It was submitted that the instant application is res judicata and an abuse of court process because it seeks to relitigate an issue already conclusively determined by a court of competent jurisdiction. The respondents’ counsel explained that the applicant's application dated 3rd August, 2023 similarly sought an extension of time to appeal against the Judgment of Justice Koross, and Justice Okwengu rendered a Ruling on the same on 24th November, 2023. They contended that the applicant's assertion that this Court advised him to withdraw his application of 12th July, 2024 and le the current one does not cure the defect. That such advice cannot override the doctrine of res judicata or confer jurisdiction on this Court to entertain a matter it has already decided. That the instant application attempts to vex and oppress them by endlessly re-litigating a settled issue and that litigation must come to an end at some point. That the Court has inherent jurisdiction to prevent abuse of its process. 6. The respondents further submitted that the applicant has not met the threshold for extension of time under Rule 4 of the Court of Appeal Rules. They reiterated that the applicant’s explanation that he was advised to withdraw another application is not a plausible and satisfactory reason. The respondents cited Chemaringo v Kibet (Civil Application 91 of 2017) [2018] KECA 701 (KLR) in which it was observed that a plausible and satisfactory explanation for delay is the key that unlocks the court's ow of discretionary favour. They argued that the delay of over three years since judgment was delivered in the matter is inordinate and unexplained. Further, the applicant has not demonstrated any chances of success that the intended appeal has. 7. I have considered the parties’ submissions. This Court has unfettered discretion under Rule 4 of the Court of Appeal Rules to consider an application for extension of time. In the case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 the Court laid down the parameters to be considered in an application for extension of time as follows: “ It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: rst the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1873/eng@2026-09-25 2

page 2 of 3

appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.” 8. The record shows that the applicant Joab Oketch Ongatta led an earlier application dated 3rd August, 2023 seeking leave for extension of time to le and serve a notice of appeal against the judgment and decree of Koross J dated 27th October, 2022, also subject of the instant application. The applicant’s earlier application was considered on merits and dismissed with costs by the single Judge (Okwengu, JA) on 24th November, 2023. 9. Rule 57 of the rules of this Court on reference from decision of a single judge states that in a civil matter, any person dissatised with the decision of a single judge and wishes any order, direction, or decision of the single judge varied, discharged or reversed by the Court, the person may apply therefor informally to the judge at the time when the decision is given or by writing to the Registrar within seven days thereafter. Instead of complying with the rule, the applicant led an application by the notice of motion dated 12th July, 2024 which he correctly opted to withdraw as per the order of the Court made on 3rd March, 2025. I observe that the instant application is an abuse of court process to the extent that the applicant has not complied with the provisions of the cited rule 57 and in circumstances that a similar application for extension of time was considered on merits and dismissed by the single judge. As submitted for the respondents, the application is res judicata. I dismiss the application with costs to the respondents. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. B. ONGAYA .................... 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/2026/1873/eng@2026-09-25 3

page 3 of 3