William Angonga Ogalo (Suing as the Legal Representative of the Estate of Abisalom Angonga Ombok) v Lazaro Ouma Chika & Another

Abisalom Angonga Ombok, seeks principally leave to file and serve a Memorandum and Record of Appeal out of time against the judgment Page 2 of 12

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and decree of the Environment and Land Court at Homa Bay in ELC Appeal No. E055 of 2024. The applicant further seeks that the Memorandum and Record of Appeal lodged in court out of time be deemed as duly filed and served, and that the costs of the application abide the outcome of the intended appeal. [2] The application is predicated upon the grounds appearing on its face and the facts deponed to in the supporting affidavit of the applicant sworn on 27th July, 2026. [3] The applicant's case appears to be that he is dissatisfied with the judgment delivered by the Environment and Land Court at Homa Bay on 8th May, 2026, which dismissed his first appeal and upheld the decision of the trial court which was adverse to his claim over land parcel number Central Kasipul/Kamuma/1590, “the suit property”. He contends that immediately upon delivery of the impugned judgment, he manifested his intention to challenge the same by filing a Notice of Appeal within the prescribed time. [4] According to the applicant, the delay in lodging the Memorandum and Record of Appeal within the prescribed period was not occasioned by any indolence on his part but arose from delays in obtaining certified copies of the proceedings, judgment and decree from the court registry Page 3 of 12

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of the first appellate court. He states that although he applied for the requisite documents on time and made follow-ups, the documents were availed to him on different dates, with the decree only being issued on 10th July, 2026, thereby hindering the preparation and filing of a complete record of appeal within the statutory timeline. [5] The applicant further states that the intended appeal is arguable and raises substantial questions of fact and law arising from the judgment of the first appellate court. He maintains that the learned Judge failed to properly consider the evidence he had placed before the court and that he has reasonable prospects of success on appeal. He asserts that unless the Court exercises its discretion in his favour, he stands to suffer substantial prejudice through the loss of an opportunity to ventilate his grievances before the appellate court. [6] It is also the applicant's position that the delay complained of is neither inordinate nor deliberate, that he is ready and willing to prosecute the intended appeal expeditiously, and that no prejudice incapable of compensation in law will be occasioned to the respondents if the orders sought are granted. He therefore urges the Court to extend time in the interests of justice so that the Page 4 of 12

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intended appeal may be heard and determined on its merits. Page 5 of 12

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[7] Pursuant to the directions issued on 3 rd October, 2026, by the Deputy Registrar of this Court, the application was directed to be disposed of by way of written submissions and without appearance of counsel and or parties. The applicant was directed to file and serve the application, written submissions and any other relevant documents on the respondents , while the respondents were granted three days within which to file and serve their responses and written submissions. [8] As at the time of crafting this ruling, only the first respondent had filed a replying affidavit, but no written submissions. The other respondents neither filed any papers in response to the application nor written submissions, despite service and the opportunity afforded by the Court. [9] Opposing the application, the 1st respondent through, his learned counsel, Mr Ouma Maurice Otieno maintains that the application is bad in law and incompetent as it is supported by a Notice of Appeal that has been overtaken by events, the appeal having not been filed within sixty days of its lodgment, the applicant had also not served on him, letter bespeaking proceedings as required, that the delay has not been satisfactorily explained, that in any event, the applicant had not demonstrated that the intended appeal is Page 6 of 12

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arguable, Litigation must Page 7 of 12

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come to an end and finally, that he will be greatly prejudiced if the application is allowed as it will mean denying him the fruits of the two judgments rendered in his favour by the trial court and the first appellate court. [10] In his written submissions, the applicant contends that the Court has wide and unfettered discretion under Rule 4 of the Court of Appeal Rules, to enlarge time, provided that the delay is satisfactorily explained and the intended appeal is arguable. Reliance was placed on Tsalia v Munanga & Another [2025] KECA 1807 (KLR), where the Court affirmed that time may be extended upon demonstration of good cause for the delay. [11] The applicant further submits that the delay in filing the record of appeal was occasioned by the staggered issuance of the proceedings, judgment and decree by the trial court. It is argued that a complete and competent record of appeal could not be prepared before all the requisite documents aforesaid had been availed. In support of that proposition, reliance is placed on Saltec International Limited & Another v Industrial Development Bank & Another [2002] KECA 101 (KLR), where the Court extended time after being Page 8 of 12

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satisfied that the Page 9 of 12

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applicant had rectified omissions which had rendered an earlier appeal incompetent and was ready to lodge a proper appeal. [12] The applicant also cited Simon v Oira [2025] KEHC 7211 (KLR), for the proposition that a delay occasioned by the process of obtaining proceedings and court documents, particularly where attributable to administrative constraints and lapses within the court system, cannot necessarily be regarded as inordinate. [13] On the arguability of the intended appeal, counsel submits that the draft memorandum of appeal raises substantial questions concerning ownership of the suit property and the protection accorded to a registered proprietor under section 26 of the Land Registration Act. It was further contended that the learned Judge failed to properly evaluate the applicant's evidence as required under section 107(1) of the Evidence Act. [14] Lastly, the applicant submits that no prejudice would be suffered by the respondents if the orders sought are granted, as they would still have an opportunity to contest the appeal on its merits. To underscore the importance of affording a litigant an opportunity to pursue an intended appeal, counsel relied on Munyuki & Another (the Legal and Personal Representatives of the Estate of the Late George Page 10 of 12

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Munyoki Page 11 of 12

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Mutheke (Deceased)) v Joel & Another [2022] KECA 658 (KLR), where the Courts emphasized that the right of access to justice and the right to be heard should, in an appropriate case, weigh in favour of extension of time. [15] I have considered the application, the grounds appearing on its face, the rival affidavits on record, and the written submissions filed by the applicant. [16] The application invokes this Court's discretionary jurisdiction under Rule 4 of the Court of Appeal Rules. The principles applicable in an application for extension of time are now well settled. In the oft-cited decision of Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, this Court held that in exercising its discretion to enlarge time, the Court considers, inter alia, the length of the delay, the reason for the delay, possibly the chances of the intended appeal succeeding if the application is granted, and the degree of prejudice likely to be occasioned to the respondent. [17] Those principles were subsequently, reiterated, expounded reaffirmed and amplified by the Supreme Court in Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Page 12 of 12 Nicholas

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Commission & 7 Others [2014] eKLR, where the Court emphasized Page 13 of 12

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that extension of time is not a right but an equitable remedy available to a deserving party who satisfactorily explains the delay and demonstrates that the discretion of the Court ought to be exercised in his favour. [18] The first issue for consideration is whether the delay has been satisfactorily explained. From the material placed before the Court, the judgment sought to be challenged was delivered on 8 th May, 2026. The applicant promptly lodged a Notice of Appeal but was thereafter unable to file a complete record of appeal within time owing to delays in obtaining certified copies of the proceedings, judgment and decree from the two courts below. Though the documents were eventually availed, it was in a staggered manner, that is, they were supplied on different dates, with the decree ultimately becoming available on 10th July, 2026. [19] This Court has consistently held that delay occasioned by the process of obtaining court proceedings or essential documents may constitute a reasonable explanation where the applicant demonstrates diligence in pursuing the same. In Fakir Mohamed v Joseph Mugambi & 2 Others [2005] eKLR, the Court observed that the discretion under Page 14 of 12

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Rule 4 is relevant unfettered and that the Page 15 of 12 Court may consider all

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circumstances of the case in determining whether sufficient cause has been established. Equally, in Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees [2020] eKLR, the Court reiterated that each case must be determined on its peculiar facts and that a plausible and candid explanation for delay is an important consideration. [20] In the present case, the explanation advanced has not been sufficiently controverted by any of the respondents. There is no material before the Court suggesting that the delay was deliberate, contumelious or intended to obstruct the course of justice. I am therefore satisfied that the delay has been reasonably and satisfactorily explained contrary to the assertions of the 1 st respondent. [21] The second issue concerns the arguability of the intended appeal. At this stage, the applicant is not required to demonstrate that the intended appeal will necessarily succeed. It is sufficient if he shows that the intended appeal is not frivolous and raises at least one bona fide point deserving consideration by the Court. [22] In Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others Page 16 of 12

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[2013] eKLR, this Court stated that an arguable appeal is not one that must succeed but one that raises a point worthy of judicial Page 17 of 12

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consideration. Having perused the draft memorandum of appeal, I note that the intended appeal raises complaints regarding the learned Judge's evaluation of the evidence, the findings made concerning ownership of the suit property, and the application of the law relating to the rights of a registered proprietor. Without making definitive pronouncements on the merits of those issues, I am persuaded that they are not frivolous and deserve interrogation by this Court contrary again to the contention by the 1 st respondent. Of course, the 1st respondent has raised the competency or otherwise of the Notice of appeal filed by the applicant as well as failure to serve on him with the letter bespeaking proceedings within the time prescribed by our rules. I do not think that these are issues that l can delve into at this juncture. There are other avenues in this Court’s Rules where such a challenge can be mounted but not in an application for extension of time. [23] The next consideration is whether any prejudice is likely to be occasioned to the respondents if the orders sought are granted. The 1st respondent’s only complaint is the delay that will be occasioned to him in the enjoyment of the fruits of the judgments rendered in his favour. In my view, any inconvenience arising from the delayed institution of the appeal can adequately be compensated by an Page 18 of 12

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award of costs and Page 19 of 12

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by appropriate directions for the expeditious prosecution of the appeal. On the other hand, denial of the orders sought would effectively shut out the applicant from exercising his undoubted right of appeal. [24] This Court has consistently leaned in favour of determining disputes on their merits where the interests of justice so demand. In County Executive of Kisumu v County Government of Kisumu &8 Others [2017] KESC 16 (KLR), the Supreme Court underscored that procedural rules are handmaidens of justice and should facilitate rather than impede the just determination of disputes. Similarly, Article 159(2)(d) of the Constitution obligates courts to administer justice without undue regard to procedural technicalities, while ensuring fidelity to the law and established procedure. [25] Taking into account the explanation offered for the delay, the arguable nature of the intended appeal, and the need to facilitate substantive justice, I am satisfied that this is a proper case for the exercise of the Court's discretion under Rule 4 of the Court of Appeal Rules. Page 20 of 12

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[26] Accordingly, I find merit in the application and make the following orders in disposal: (i) The applicant is granted leave to file and serve the Memorandum and Record of Appeal out of time. Page 21 of 12

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(ii) That the Memorandum and Record of Appeal lodged in court out of time be and is hereby deemed as duly filed and served upon payment of the requisite court fees, if any. (iii) The costs of the application shall abide the outcome of the intended appeal. Dated and delivered at Kisumu this 6th day of October, 2026. ASIKE-MAKHANDIA ………………... ………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 22 of 12

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