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

application do abide the outcome of the intended appeal. The application is supported by an affidavit sworn by the applicant on even date. Ruling - KAK Civil Application No. E028 of 2026 (Formerly KSM Civil Application No. E009 Page 2 of 7

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2. In summary, the applicant’s explanation is that he duly filed a Notice of Appeal upon delivery of the impugned judgment, and a letter bespeaking of the proceedings on 29th July 2024, which was duly served on the respondent. However, that he faced a number of challenges in accessing the certified copies of proceedings to enable the assembling of the record of appeal, and the said proceedings were eventually procured on 6th December 2024, whereupon the applicant lodged the instant application. Furthermore, that backlog of Court work occasioned the delay in co-ordinating the typing of proceedings, and the applicant made several efforts including writing letters to the Deputy Registrar to fast track the proceedings. Lastly, that the appeal raised fundamental questions on the succession of estates of deceased persons and rightful share to be given to each beneficiary, as well as on trust and historical injustices in land ownership. The applicant annexed a copy of the draft memorandum of appeal in this respect. 3. These averments were reiterated in written submission dated 30th June 2025 filed by the J.W. Sichangi & Advocates, the applicant’s advocates on record, in which Ruling - KAK Civil Application No. E028 of 2026 (Formerly KSM Civil Application No. E009 Page 3 of 7

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various judicial decisions, including Leo Sila Mutiso vs Rose Hellen Wangari Mwangi, Civil Application No. Nai 251 of 1997, Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Ruling - KAK Civil Application No. E028 of 2026 (Formerly KSM Civil Application No. E009 Page 4 of 7

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Boundaries Commission & 7 Others [2014] eKLR and Utalii Transport Company Limited & 3 Others vs NIC Bank Limited & Anor [2014] eKLR were cited in support of the position that the applicant had satisfied the threshold for the grant of extension of time to lodge the appeal under Rule 4 of the Court of Appeal Rules, 2010. In particular, it was urged that the instant application was filed on 20th January 2025 approximately one month of receipt of the proceedings, and was therefore made without inordinate delay. 4. The respondent’s advocate, Peter Kiarie Ndarwa, filed an affidavit sworn on 23rd June 2025 in opposition to the application. While acknowledging that the applicant served his firm with the letter requesting for proceedings, the advocate contended that the applicant had not proffered any reason why a certificate of delay was not obtained from the Deputy Registrar upon being supplied with the proceedings on 6th December 2024, and if obtained, the sixty days within which to file the record of appeal should have lapsed on 28th February 2025 in which case the period had not expired by the time of filing the instant application. These arguments were replicated in written Ruling - KAK Civil Application No. E028 of 2026 (Formerly KSM Civil Application No. E009 Page 5 of 7

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submissions dated 30th April 2026 filed by the advocate dated 30th April 2026, in which it was reiterated that the applicant has neither obtained nor explained the Ruling - KAK Civil Application No. E028 of 2026 (Formerly KSM Civil Application No. E009 Page 6 of 7

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failure to obtain a Certificate of Delay, and in the absence of such certificate, cannot rely on any excluded period and this omission was fatal. 5. I heard the application in chambers in the absence of the parties on 7th May 2026, and have considered the arguments put forth by the applicant and respondent. The principles that apply to an application for extension of time under Rule 4 of the Court of Appeal Rules of 2022, which have been the subject of many decisions of this Court and the Supreme Court of Kenya. In summary, the Court of Appeal confirmed in the case of Leo Sila Mutiso vs Rose Hellen Wangare Mwangi, (supra) that the decision whether or not to extend time for appealing is essentially discretionary, taking into account the length of delay and reason for the delay. 6. In the case of Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 Others, Supreme Court of Kenya Application No. 16 of 2014, the Supreme Court of Kenya set down the underlying principles that a Court should consider in exercising its discretion as being: " i. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the Ruling - KAK Civil Application No. E028 of 2026 (Formerly KSM Civil Application No. E009 Page 7 of 7

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ii. discretion of the Court; A party who seeks an extension of time has the burden of laying a basis to the satisfaction of the court; Ruling - KAK Civil Application No. E028 of 2026 (Formerly KSM Civil Application No. E009 Page 8 of 7

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7. iii. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis; iv. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; v. Whether the respondents will suffer any prejudice if the extension is granted; vi. Whether the application has been brought without undue delay; and vii. Whether in certain cases, like election petitions, public interest should be a consideration for extending time." The Supreme Court of Kenya also pronounced as follows in the case of Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet [2018] eKLR: 8. “the law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.” The relevant timelines are provided in Rule 84 of the Court of Appeal Rules of 2022, which requires an appeal to be instituted by lodging a memorandum of appeal and record of appeal within sixty days after the date when the notice of appeal was lodged. The ruling sought to be appealed was delivered by the Environment and Land Court on 4 th Ruling - KAK Civil Application No. E028 of 2026 (Formerly KSM Civil Application No. E009 Page 9 of 7

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July 2024, and it is not disputed that the applicant thereafter lodged a notice of appeal and a letter seeking the typed proceedings of the trial court on 29th July 2024. The applicant filed their application for extension of time Ruling - KAK Civil Application No. E028 of 2026 (Formerly KSM Civil Application No. E009 Page 10 of 7

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on 20th January 2025, about 6 months later. While the said application may have been filed within a month of receipt of the typed proceedings, and the applicant has explained that the delay was caused in accessing the said proceedings, no evidence of a Certificate of Delay was provided by the applicant. It is notable in this respect that Rule 84 of the Court of Appeal Rules of 2022 provides as follows: 84. (1) Subject to rule 118, an appeal shall be instituted by lodging in the appropriate registry, within sixty days after the date when the notice of appeal was lodged— (a) a memorandum of appeal, in four copies; (b) the record of appeal, in four copies; (c) the prescribed fee; and (d) security for the costs of the appeal: Provided that where an application for a copy of the proceedings in the superior court has been made in accordance with sub-rule (2) within thirty days after the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certified by the registrar of the superior court as having been required for the preparation and delivery to the appellant of such copy. (2) An appellant shall not be entitled to rely on the proviso to sub-rule (1) unless the appellant’s application Ruling - KAK Civil Application No. E028 of 2026 (Formerly KSM Civil Application No. E009 Page 11 of 7

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9. In for such copy was in writing and a copy of the application was served upon the respondent. addition, the applicant did not annex any correspondence with the Deputy Registrar on follow up he averred he made on the typed Ruling - KAK Civil Application No. E028 of 2026 (Formerly KSM Civil Application No. E009 Page 12 of 7

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proceedings. 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. 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 and avail the relevant documents to support his prayer, if indeed there was delay in accessing the typed proceedings of the trial Court 10. The application dated 20th January 2025 is accordingly struck out, with costs to the respondent. 11. Orders accordingly. Dated and delivered at Nairobi this 22nd day of May, 2026. P. NYAMWEYA. …………………………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Ruling - KAK Civil Application No. E028 of 2026 (Formerly KSM Civil Application No. E009 Page 13 of 7

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