Miletus Charles Nyongesa v Zakayo Waswa
The bottom line
#The Court of Appeal refused a landowner extra time to take his land dispute to the Supreme Court, citing an unexplained 28-month delay.
What this practically means
#Executive summary
#Key legal issues
#Correct procedural rules for extension of time and certification at the Court of Appeal
Rule 43 is merely jurisdictional; the substantive power is Rule 4, the pathway for out-of-time certification applications is Rule 41(3), and Rule 41(2) prescribes a 30-day window at the Court of Appeal, not Rule 42's 14 days.
The court corrected the Applicant's mis-citations: Rule 42 applies to certification before the High Court, while certification at the Court of Appeal falls under Rule 41(2) with a 30-day window. The substantive extension power lies in Rule 4, with Rule 41(3) governing out-of-time certification applications.
Commencement of time where a review was pending and dismissed
Time ran from the judgment of 23rd June 2023, not from the review ruling of 24th October 2025, because a pending review does not toll time and the Court was functus officio.
Relying on Fredrick Otieno Outa v Jared Odoyo Okeyo, the court held that a pending review does not toll time for a certification application, particularly where the Court is ordinarily functus officio after delivering judgment. The Applicant's premise that time ran from the review ruling was therefore flawed.
Whether the delay of approximately 28 months was excusable
The delay was inordinate and unexplained; the 'communication breakdown' excuse lacked corroboration and had already been rejected in the 24th October 2025 ruling.
The Applicant offered a bare assertion of communication breakdown with previous counsel, with no documentation, name of counsel, or complaint to a professional body. The same excuse was previously adjudicated and rejected, with the court finding the Applicant failed the standard of a vigilant and prudent litigant.
Whether the intended appeal was arguable and whether prejudice outweighed any merit
At prima facie glance the intended appeal did not demonstrate merit overwhelming the extreme delay and prejudice; the balance of convenience favoured the Respondent, whose vested title was registered and subject to active enforcement proceedings.
The court examined the limitation authorities cited but found no obvious prima facie substantive point of law justifying the delay. The Respondent's title had been registered since 10 November 2023 and enforcement proceedings were active before the Environment and Land Court at Bungoma; reopening would destabilize a vested proprietary interest and undermine finality.
Legal principles established
#- A pending review does not toll time for a certification application; time runs from the original judgment where the Court is functus officio.
- Extension of time is an equitable remedy, not a right, governed by the Salat criteria including length and reason for delay, arguability, prejudice and finality.
- A litigant cannot re-package a complaint already adjudicated against him to secure a different equitable indulgence.
Court orders
#- 1.The Notice of Motion dated 24th November 2025 is dismissed with costs to the Respondent
- On appeal from
- Court of Appeal
- null
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Miletus Charles Nyongesa v Zakayo Waswa", Case Analysis (2026). Civil Appeal (Application) No. E062 of 2026 formerly KSM 49 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2089/eng@2026-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.