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Court of AppealDismissedCivil Appeal (Application) E109 of 2023· [2026] KECA 1873 (KLR)

Ongatta v Omulo & another

Court of Appeal
25 September 2026
BOB. Ongaya
1,259 words in judgment
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The bottom line

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Kenya's Court of Appeal refused a second attempt to extend time to appeal, ruling the matter was already decided and cannot be relitigated.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Ongaya, JA) on a chamber notice of motion dated 11th March 2025 by which the applicant sought extension of time to appeal against the judgment and decree of Koross, J. of the Environment & Land Court at Siaya in ELC Case No. 33 of 2021 delivered on 27th October 2022, together with deeming of his draft memorandum of appeal as filed and served, and costs in the cause. The application was brought under Rule 4 of the Court of Appeal Rules, 2022 and Section 3A of the Appellate Jurisdiction Act. The applicant argued that a three-judge Bench had directed him to withdraw an earlier motion and file the present application, that his delay was occasioned by his former advocate's mistake, and that the mistake of an advocate should not be visited on an innocent litigant. The respondents opposed, submitting the application was res judicata and an abuse of process because a similar application dated 3rd August 2023 had been considered on its merits and dismissed with costs by Okwengu, JA on 24th November 2023, and that the applicant had neither offered a plausible explanation for the delay nor demonstrated chances of success. The court agreed with the respondents. It held that instead of pursuing a reference under Rule 57 within seven days of the single judge's decision, the applicant filed a fresh motion seeking identical relief; the application was therefore res judicata and an abuse of court process. The application was dismissed with costs to the respondents.

Key legal issues

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01

Res judicata and abuse of process in successive extension-of-time applications

Holding

A second extension-of-time application seeking the same relief after a first was dismissed on the merits is res judicata and an abuse of court process; the correct course was a Rule 57 reference within seven days

Reasoning

The court found the applicant had filed an earlier application dated 3rd August 2023 seeking the same extension of time, which Okwengu, JA considered on merits and dismissed with costs on 24th November 2023. Instead of invoking Rule 57 reference procedure within seven days, the applicant filed a fresh motion. The court held the fresh application relitigates a settled issue and is an abuse of process.

p. 3
02

Parameters for extension of time under Rule 4

Holding

Extension of time is discretionary, considering length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent

Reasoning

The court restated the settled parameters from Leo Sila Mutiso v Hellen Wangari Mwangi but did not reach the merits of the Rule 4 factors, since the application failed on res judicata and abuse of process grounds.

p. 2

Legal principles established

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  • A person dissatisfied with a single judge's decision in a civil matter must seek a reference under Rule 57 within seven days; a fresh extension-of-time application after a similar application has been dismissed on the merits is res judicata and an abuse of court process

Court orders

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  1. 1.The notice of motion dated 11th March, 2025 is dismissed
  2. 2.Costs of the application are awarded to the respondents
On appeal from
Environment & Land Court at Siaya
ELC Case No. 33 of 2021
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022 and Section 3A of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ongatta v Omulo & another", Case Analysis (2026). Civil Appeal (Application) E109 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1873/eng@2026-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.