Wamalwa (Suing as the Legal Representative of the Estate of Wilycster Noel Nyongesa) v Kenya Union of Savings & Credit Co-operatives Ltd & another

died; certied copies of proceedings were ready for collection on 22nd September 2025 but due to the deaths, illness and nancial constraints could not instruct an advocate in good time. 3. The applicant further contended in the application that the intended appeal had arguable points and raised legal issues. 4. The applicant led submissions dated 4th May 2026 wherein he cited Leo Sale Mutiso v Hellen Wangari Mwangi (1999) 2 EA 231 for the proposition that extension of time was a discretionary power bestowed on the Court and the factors to be considered were the length of delay; the reason for the delay; the chances of the appeal succeeding and lastly any prejudice to be occasioned to the Respondent. 5. The applicant reiterated the explanations set out in the body of the application and supporting adavit. 6. The 1st Respondent caused a replying adavit and submissions to be led on the morning of 7th May 2026 wherein it was deponed that the Notice of Appeal was led outside the prescribed 14 days; the said Notice of Appeal was not served within 7 days as required by Rule 79(1) of the Court of Appeal Rules; no leave was sought before the ling of the Notice; the intended appeal was thus fatally defective and incompetent; a copy of the letter requesting proceedings had not been annexed nor proof of its service provided as set out in Rule 84(2) of the Rules; the delay was unexplained and inordinate and that the Court ought not to exercise its discretion in favour of the applicant in the circumstances. 7. In its submissions, the 1st Respondent asserted that the applicant had failed to satisfy the legal threshold for the grant of the orders sought in that the explanations given were unsubstantiated. 8. The Court has considered the application, adavits and submissions. 9. Rule 4 of the Court of Appeal Rules gives this Court the jurisdiction to extend time. The Rule provides: The Court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or a superior court, for the doing of any act authorised or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended. 10. The Supreme Court summarised the relevant principles in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Ors (2014) eKLR thus: extension of time is not right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court; a party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court; whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to- case basis; whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; whether there will be any prejudice suered by the respondents if the extension is granted; whether the application has been brought without undue delay and whether in certain cases, like election petitions, public interest should be a consideration for extending time. 11. The discretion of the Court to grant an extension of time under Rule 4 of the Court of Appeal Rules is unfettered. 12. The judgment sought to be appealed against was delivered on 25th June 2025. A Notice of Appeal was lodged on 2 October 2025. 13. There is no evidence that the applicant applied for certied copies of proceedings though it is stated they were ready for collection on 22nd September 2025. There is no evidence that such a request was copied to the Respondent as required by Rule 84(1) as read with Rule 84(2). https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2034/eng@2026-05-22 2

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14. Although the ling of a Notice of Appeal and Record of Appeal are distinct and are governed by Rules 77 and 84 of the Court of Appeal Rules, granting the applicant leave in the circumstances of this application would be an exercise in speculation. It is not discernible from the material placed before the Court that he genuinely desires to appeal. He has not demonstrated that he took vital steps which are prerequisites to an intended appeal. 15. The Court is not satised that the applicant has made out a case for the exercise of its discretion in his favour. 16. The application dated 19th December 2025 is dismissed with no order on costs since the 1st Respondent only led its submissions on the morning of the hearing. DATED AND DELIVERED AT KAKAMEGA ON THIS 22ND DAY OF MAY, 2026. RADIDO A. OKIYO …………………………………… 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/2026/2034/eng@2026-05-22 3

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