Jack Nyongesa (Suing as legal administrator of the estate of Zakayo Wekesa Mukhalisi) v Charles Walibwa Wekesa
The bottom line
#The Court of Appeal struck out an extension-of-time application because the appellant had no Certificate of Delay or evidence explaining the filing delay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant satisfied the Rule 4 threshold for extension of time to lodge a memorandum and record of appeal out of time
- 2.Whether the explanation for the delay in assembling the record of appeal was supported by evidence, including a Certificate of Delay
- 3.Whether the application should be dismissed or struck out
Key legal issues
#Whether the applicant's explanation for delay was sufficiently evidenced
The explanation was unsupported: no Certificate of Delay was obtained and no follow-up correspondence with the Deputy Registrar was annexed, so the application was incompetent.
The applicant averred that backlog of court work and difficulty accessing certified proceedings caused the delay, and that he wrote letters to the Deputy Registrar. However, no Certificate of Delay was provided and none of the alleged correspondence was annexed. Under Rule 84, time can only be excluded as certified by the registrar; without the certificate the explanation fails and the application cannot rely on any excluded period.
Whether to dismiss or strike out the application
The court struck out rather than dismissed the application, to allow the applicant to cure the evidentiary gaps and re-approach the court.
Although the application failed for want of a Certificate of Delay and supporting evidence, the judge considered it appropriate to strike out rather than dismiss, preserving the applicant's opportunity to put his house in order and avail the relevant documents if there was indeed delay in accessing the typed proceedings.
Legal principles established
#- An appellant cannot rely on the proviso to Rule 84(1) excluding time for preparation of proceedings without a certificate from the registrar of the superior court certifying the time required.
- Extension of time under Rule 4 is a discretionary, equitable remedy available only to a deserving party who lays a basis to the satisfaction of the court.
- A satisfactory explanation for delay is the key to the court's discretionary favour; there must be valid and clear reasons upon which discretion can be favourably exercised.
Court orders
#- 1.The application dated 20th January 2025 is struck out
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court of Kenya at Bungoma
- ELC Case No. 1 of 2020
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (application for extension of time to lodge an appeal)
Relief refused
#Extension of time to file and serve the Record of Appeal and Memorandum of Appeal and leave to lodge them out of time
No evidence supported the explanation for the delay; no Certificate of Delay was obtained or explained, rendering the application incompetent
Costs of the application to abide the outcome of the intended appeal
The application was struck out with costs to the respondent instead
Costs
Costs of the application to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The application dated 20th January 2025 is accordingly struck out, with costs to the respondent.
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
A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour.
Issues in the judgment
#Judgment inconsistently refers to Rule 4 of the Court of Appeal Rules, 2010 (as cited by parties) and Rule 4 of the Court of Appeal Rules of 2022.
Page numbering is inconsistent with the document length (pages marked 'of 7' but running to page 13).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jack Nyongesa (Suing as legal administrator of the estate of Zakayo Wekesa Mukhalisi) v Charles Walibwa Wekesa", Case Analysis (2026). Civil Application No. E028 of 2026 (Formerly KSM Civil Application No. E009 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2084/eng@2026-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.