Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal (Application) No. E062 of 2026 formerly KSM 49 of 2018· [2026] KECA 2089 (KLR)

Miletus Charles Nyongesa v Zakayo Waswa

Court of Appeal
17 July 2026
1,405 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
This is a single-judge chambers ruling of the Court of Appeal at Kakamega (Ngetich, JA) on a Notice of Motion dated 24th November 2025 by Miletus Charles Nyongesa seeking extension of time to file an application for certification and leave to appeal to the Supreme Court. The underlying dispute concerned land parcel West Bukusu/North Mateka/77, in which the Court of Appeal (Kiage, Mumbi Ngugi & Tuiyott, JJ.A) partly allowed the Respondent's appeal on 23rd June 2023, declared the Applicant's registration fraudulent and ordered transfer of the parcel; a subsequent review application was dismissed on 24th October 2025. The court first corrected the Applicant's procedural mis-citations: the substantive power to extend time lies in Rule 4 of the Court of Appeal Rules, 2022, with Rule 41(3) governing out-of-time certification applications, and Rule 41(2) - not Rule 42 - prescribing a 30-day window at the Court of Appeal. It held that time ran from the judgment of 23rd June 2023, not from the review ruling, since a pending review does not toll time and the Court was functus officio (Fredrick Otieno Outa). The delay of approximately 28 months was inordinate, and the Applicant's bare 'communication breakdown' excuse, lacking corroboration, had already been rejected in the October 2025 ruling. Applying the Salat principles, the court found no satisfactory basis for the delay, no overwhelming prima facie merit in the intended certification appeal, and acute prejudice to the Respondent, whose registered title was subject to active enforcement proceedings before the Environment and Land Court at Bungoma. The application was dismissed with costs to the Respondent.

Key legal issues

#
01

Correct procedural rules for extension of time and certification at the Court of Appeal

Holding

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.

Reasoning

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.

p. 2
02

Commencement of time where a review was pending and dismissed

Holding

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.

Reasoning

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.

p. 3
03

Whether the delay of approximately 28 months was excusable

Holding

The delay was inordinate and unexplained; the 'communication breakdown' excuse lacked corroboration and had already been rejected in the 24th October 2025 ruling.

Reasoning

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.

p. 4
04

Whether the intended appeal was arguable and whether prejudice outweighed any merit

Holding

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.

Reasoning

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.

p. 8

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. 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.