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Court of AppealDismissedCivil Application E027 of 2026 (formerly Kisumu Civil Application No. E064 of 2026)

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

Court of Appeal
22 May 2026
SRS Radido
1,089 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kakamega (Radido, JA) on a Motion under Rule 4 of the Court of Appeal Rules, 2022 seeking leave to file an appeal out of time against a judgment of the Environment and Lands Court (Ohungo, J) delivered on 25th June 2025 in Kakamega ELCA No. E007 of 2023. The applicant, suing as legal representative of an estate, attributed the delay to the illness and deaths of two wives, his own illness, and financial constraints, asserting the intended appeal raised arguable points. He relied on Leo Sale Mutiso v Hellen Wangari Mwangi on the discretionary factors. The 1st respondent opposed, contending the Notice of Appeal was filed outside 14 days, not served within 7 days under Rule 79(1), and that no request for proceedings was copied to it as required by Rule 84. The court applied the Supreme Court's principles in Nicholas Kiptoo Arap Korir Salat v IEBC, reaffirming that extension of time is an equitable, discretionary remedy and not a right, and that the discretion under Rule 4 is unfettered. It found no evidence that the applicant applied for certified copies of proceedings or copied such a request to the respondent, held that granting leave would be an exercise in speculation, and dismissed the application. Notably, no order on costs was made because the 1st respondent filed its submissions only on the morning of the hearing. The decision below was not disturbed; the intended appeal was simply not allowed to be lodged.

Key legal issues

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01

Whether the delay in filing the appeal was satisfactorily explained and whether the applicant took prerequisite steps

Holding

The application was dismissed; the applicant failed to substantiate the reasons for delay and did not demonstrate vital prerequisite steps such as applying for certified proceedings and copying the request to the respondent.

Reasoning

The court applied the Salat principles: extension is equitable and discretionary, requiring a satisfactory explanation for delay, absence of prejudice, and promptness. The applicant claimed deaths, illness and financial hardship, but produced no evidence of a request for certified copies of proceedings copied to the respondent as required by Rule 84. Granting leave would be speculation about a genuine desire to appeal.

p. 3

Legal principles established

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  • Extension of time under Rule 4 is an equitable discretionary remedy, not a right; the applicant bears the burden of explaining the delay and demonstrating prerequisite steps toward the appeal.
  • The Court of Appeal's discretion to extend time under Rule 4 is unfettered and exercised case by case.

Court orders

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  1. 1.The application dated 19th February 2026 dismissed with no order on costs
On appeal from
Environment and Lands Court
Kakamega ELCA No. E007 of 2023
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022

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, "Wamalwa (Suing as the Legal Representative of the Estate of Wilycster Noel Nyongesa) v Kenya Union of Savings & Credit Co-operatives Ltd & another", Case Analysis (2026). Civil Application E027 of 2026 (formerly Kisumu Civil Application No. E064 of 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2034/eng@2026-05-22

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