Kiarie v Karai Farmers’ Cooperative Society Ltd & another

2. In this application, at prayer (2) the applicant seeks extension of the time within which to le the reference application against the ruling of a single judge (Warsame, JA. as he then was) dated 31st October 2025 delivered in Nakuru Civil Appeal (Application) No. NAK E006 of 2025. Extension of time is a matter for a single judge under Rule 4 of the Court of Appeal Rules, 2022. 3. However, prayer (3) in which the applicant prays that upon grant of prayer (2) above, this Court reviews and sets aside the above mentioned ruling falls within the jurisdiction of a full bench. Prayer 4 in which the applicant prays for an order that upon review of the said ruling, this Court allows her notice of appeal led on 6th November 2024 and it be deemed as properly led also falls within the jurisdiction of a single judge. Lastly, at prayer (5) the applicant prays that in the alternative to her prayer (4), this Court be pleased to order that the suit against the 2nd respondent, that is Nakuru ELC No. 81 of 2019 be revived and heard on merits to determine the issue of ownership of the suit property falls within the jurisdiction of a full bench. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1680/eng@2026-09-16 2

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4. Omnibus applications frequently create severe procedural bottlenecks and structural problems for both the courts and the opposing parties. Courts highly discourage this "shotgun approach" and prefer precise, structured litigation where each cause of action is clearly pleaded on its own merits. Omnibus applications create an untidy situation. Signicantly, the Rules of this Court do not contemplate omnibus applications. (See Michael Kandie Kangogo vs. Mohamed Cheboi & 5 Others [2026] KECA Civil Application No. NAK E141 of 2025 (Nakuru)). Notably, Rule 55 of the Court of Appeal Rules, 2022 serves as a strict jurisdictional divider in the Kenyan Court of Appeal, clearly delineating which interlocutory applications fall within the mandate of a single judge versus those that must be placed before a full bench (a panel of three or more judges). (See Orange Democratic Movement Party & Another vs. Opiyo & 2 Others (Election Petition Appeal (Application) E186 of 2022) [2022] KECA 893 (KLR) (12 August 2022) (Reasons)). https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1680/eng@2026-09-16 3

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5. I must underscore that the Court of Appeal Rules, 2022, do not contemplate or permit omnibus applications that combine reliefs meant for a single judge with reliefs meant for a full bench. The Court of Appeal has strictly condemned this procedural practice as an improper invocation of its jurisdiction. ( Kaithia vs. Kavila & Another (Civil Application E302 of 2020) [2024] KECA 1614 (KLR) (8 November 2024) (Ruling)). The Court of Appeal Rules, 2022 explicitly demarcate which applications must go before a single judge and which require a full bench. 6. A single judge jurisdiction is restricted to handling interlocutory and specic non-contentious procedural reliefs, most notably applications for extension of time under Rule 4 and applications to le an appeal as a pauper. (See Waweru & 2 Others vs. Maina (Civil Application E002 of 2026) [2026] KECA 382 (KLR) (5 March 2026) (Ruling)). A full bench handles substantive, nal or contentious reliefs, such as an application for stay of execution, stay of proceedings, or an injunction pending appeal (typically brought under Rule 5 (2)(b)) or a reference to a full bench. 7. Because these powers ow from dierent statutory and procedural sources, they cannot be conated into a single https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1680/eng@2026-09-16 4

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notice of motion. (See Kaithia vs. Kavila & Another (Supra)). If an omnibus application is placed before a full bench, it will decline to consider the prayer meant for a single judge. Since a stay of execution or a reference cannot be granted if the extension of time is refused, failing to rst secure an extension of time from a single judge will cause the entire full-bench application to collapse. (See Waweru & 2 Others vs. Maina (Civil Application E002 of 2026) [2026] KECA 382 (KLR) (5 March 2026) (Ruling)). 8. The standard procedure requires consecutive applications, not concurrent or combined ones. First step: An applicant should le an application before a single judge seeking extension of time. Second step: Once time is extended and the appeal is properly instituted, le a separate application before a full bench for a stay of execution or conservatory orders or a reference as the case may be. Nonetheless, I will only address prayer (2) of the application which falls within the jurisdiction of a single judge. In the same vein, I will only consider the parties’ submissions relevant to the said prayer. The sole ground presented in support of the plea for extension of time is a blame directed at her previous counsel who she accuses of inaction and abandoning her. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1680/eng@2026-09-16 5

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9. The application is vehemently opposed by the 2nd respondent vide his replying adavit dated 29th July 2026. The salient averments are: (a) the application is omnibus and it lacks merit; (b) there is a delay of 200 days from the date the single judge rendered the impugned decision to 17th June 2026 when the applicant moved this Court; (c) no explanation for the delay has been provided; (d) the blame attributed to the applicant’s previous advocate is insucient; (d) this Court lacks jurisdiction to entertain the application because no competent notice of appeal has been led against the decision of the single judge. 10. The 1st respondent did not le any response or submissions in response to the application. 11. In support of the application, the applicant through her counsel led submissions dated submissions dated 10th July 2026. In a nutshell, the applicant submitted that this Court has residual jurisdiction to extent time where justice so demands and cited this Court’s decision in Trust Bank (Kenya) Limited [2024] KECA 589 (KLR) to underscore that the factors to be considered include period of the delay, reasons for the delay, prejudice to the parties and public https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1680/eng@2026-09-16 6

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importance. Counsel submitted that the impugned ruling was delivered on 31st October 2025, and the applicant’s then advocate took no action. In February 2026, faced with an eviction threat, the applicant who is elderly instructed her present advocate who led an application for review dated 9th June 2026. However, the said application was withdrawn and the instant application dated 17th June 2026 was led. Counsel maintained that no prejudice will be suered by the respondent if the plea for extension of time is granted. 12. The 2nd respondent’s counsel led submissions dated 29th July 2026 through his advocate. The 2nd respondent described the application as omnibus in nature and cited this Court’s decision in Waweru & 2 others vs. Maina (Civil Application E002 of 2026) [2026] KECA 382 (KLR) (5 March 2026) (Ruling)) to urge that courts abhor omnibus applications because they inter alia cause confusion. The 2nd respondent also cited the Supreme Court decision in Nicholas Kiptoo Arap Korir vs. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR to urge that the applicant does not meet the considerations laid down in the said decision. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1680/eng@2026-09-16 7

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13. I will rst address the 2nd respondent’s argument that this Court lacks jurisdiction to entertain this application because “no competent notice of appeal has been led against the decision of the single judge.” This argument is totally misleading and legally awed. To my mind, a person who is dissatised by a decision of a single judge is not required to le a notice of appeal at all. Rule 77 of the Court of Appeal Rules, 2022 only applies to persons desiring to appeal to the Court of Appeal. Under Rule 57 of the Court of Appeal Rules, 2022, a litigant who is dissatised with the decision of a single judge must formally le a reference within 7 days if they want the matter to be heard and determined by a full bench of the Court. (See Kenya Aviation Workers Union vs. Kenya Airways Limited (Civil Appeal (Application) E198 of 2023) [2024] KECA 1945 (KLR) (20 December 2024) (Ruling)). A reading of Rule 57 leaves no doubt that a litigant must proactively initiate the mechanism known as a reference from the decision of a single Judge. Therefore, a reference is a mandatory procedural requirement to trigger a full-bench review of a single judge's decision. It is initiated by a letter to the Registrar within 7 days, not a notice of appeal. (See Rule 57 (b)). https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1680/eng@2026-09-16 8

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14. I will now address the application for extension of time on merits. Under Rule 4 of the Court of Appeal Rules, 2022, an applicant seeking an extension of time to le a reference must provide a plausible and satisfactory explanation for the delay. While Rule 4 grants the Court broad and unfettered discretion to extend procedural deadlines, our courts have consistently ruled that this discretion is not an automatic right; it must be judicially earned by satisfying key legal thresholds. (See Bartilol & 3 others vs. Bartilol & Another (Civil Application 001 of 2024) [2024] KECA 607 (KLR) (24 May 2024) (Ruling)) and Nicholas Kiptoo Arap Korir vs. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR. 15. It is settled law that a plausible explanation is paramount in an application for extension of time. As was armed by this Court Andrew Chemaringo vs. Kibet [2018] KECA 701 (KLR), a satisfactory explanation is the "key that unlocks the court's ow of discretionary favour". The explanation must cover the entire period of the delay. The law does not set a specic cut-o date or maximum timeline for what constitutes an acceptable delay. An applicant can be denied an extension for an unexplained delay of just a few days, or granted an extension for a delay of months if the cause is deemed valid (e.g., severe illness, ocial delays in extracting the ruling, or structural misdirection). (See Ruhangi vs. Registrar of https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1680/eng@2026-09-16 9

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Companies & 2 Others (Civil Appeal (Application) E228 of 2023) [2023] KECA 834 (KLR) (7 July 2023) (Ruling)). 16. The application seeking the extension itself must be brought to the Court promptly once the applicant becomes aware of the lapse. The Court balances the scales of justice by assessing whether granting the extension will cause incurable prejudice or hardship to the opposing party who already holds a favorable ruling from the single judge. (See Lwangu vs. Ndote & 23 Others (Civil Application E090 of 2025) [2026] KECA 397 (KLR) (5 March 2026) (Ruling)). 17. The applicant’s sole ground is that she was let down by her advocate. Blaming a legal representative for inaction or negligence is generally NOT sucient on its own to merit an extension of time. While courts recognize that an innocent litigant should not always be penalized for their lawyer’s mistakes, the law draws a strict line against a "washing of hands" attitude where the litigant abdicates all his/her responsibility. The foundational authority on this issue is the Appellate Division of South African case of Saloojee and https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1680/eng@2026-09-16 10

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Another NNO vs. Minister of Community Development 1965 (2) SA 135 (A) in which Steyn CJ laid down the following standard that continues to guide courts today: "There is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insuciency of the explanation tendered... The attorney, after all, is the representative whom the litigant has chosen for himself..." 18. The court in the above case noted that if it accepted lawyer’s negligence as an automatic excuse, it would lead to a disastrous disregard for court rules. More recent decisions such as Van Den Heever and Another vs. Roos and Others (A305/2025) [2026] ZAWCHC 113 (11 March 2026) strongly rearm that a litigant has a continuous, independent duty to monitor their case. To successfully blame a lawyer for a delay, the litigant must prove two things: (a) They were actively vigilant. They must prove that they routinely followed up, asked for progress updates, and did everything a reasonable person would do to keep the case moving. (b) They are a blameless victim. There must be a factual basis showing the litigant was actively misled or completely kept in the dark by the practitioner despite making reasonable inquiries. If a litigant passively sits back for months without checking on their case, the court will rule that they accepted the risk of delay. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1680/eng@2026-09-16 11

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19. In this case, even though the applicant claims she is elderly, there is nothing to suggest she made eorts to contact her lawyer and that her eorts were in vain. A reference is required to be led within 7 days. The 200 day or so delay have not been accounted for. An extension of time is a discretionary remedy. The Court will not look at the lawyer’s blame in isolation; instead, it balances it against a broader set of factors such as: (a) the degree of lateness. A short delay caused by a lawyer's oversight is much easier to condone than a protracted delay stretching across months. (b) a reasonableness of the explanation for the delay. The applicant must provide a full, candid and comprehensive explanation under oath explaining why the deadline was missed. Simply saying the lawyer failed me is entirely insucient. (c) prospects of success. This is the most crucial counterbalance. If the underlying appeal or case has strong prospects of success, the Court may tolerate a lawyer's negligence to ensure justice is served. However, if the delay is agrant and gross, the Court can refuse the extension regardless of the case's merits. (d) prejudice to the other Party. The Court will evaluate whether the opposing party will suer unfair harm or if the nality of the judgment is being unreasonably stalled. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1680/eng@2026-09-16 12

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20. In evaluating applications for an extension of time to appeal under Rule 4, this Court has consistently reinforced the modern judicial position that shifting absolute blame onto an advocate is no longer an automatic pass or "blanket escape" from timelines. Equity aids the vigilant, meaning that a litigant retains a personal responsibility to track and oversee their own case. 21. This Court in Keroche Breweries Ltd vs. Shollei (Civil Application E020 of 2023) [2026] KECA 1082 (KLR) unequivocally rejected an application for extension of time explicitly ruling that there is no absolute rule that a mistake of counsel automatically constitutes "sucient cause" for an extension of time. Citing foundational international and domestic decisions, the Court in the above decision explained that a lawyer's mistake must be strictly made bona de (made in good faith despite exercising reasonable care). If a mistake arises from sheer lack of care, systemic casualness or is weaponized as a convenient device to mask an un-vigilant party's delays, the Court must reject the extension. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1680/eng@2026-09-16 13

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22. When a Court declines applications anchored on the "blame- the-advocate" doctrine, courts anchor the rejection on three modern pillars of procedural law. These are: (a) The case belongs to the litigant. Once a matter is led, the le does not structurally belong to the advocate; it belongs to the client. The litigant is required to show continuous, documented interest and remain in constant touch with their counsel. (b) Evidentiary proof of advocate misconduct. Courts consistently demand that if an advocate's indolence is blamed, the applicant must exhibit actual proof of follow-up (such as written correspondence, complaint letters, or formal tracking). Mere "bald allegations" without physical proof are ignored by the Court. (b) Article 159 is not a shield for indolence. Litigants frequently invoke Article 159 (2) (d) of the Constitution (which mandates that justice be administered without undue regard to procedural technicalities). However, missing a fundamental statutory deadline due to an unchecked lawyer's mistake is not a "mere technicality" but an issue that goes to the root of the Court's jurisdiction. 23. I have carefully weighed the reason oered by the applicant in support of the plea for extension of time. I am not persuaded that the applicant has demonstrated sucient grounds to merit the extension of time sought. The upshot of the foregoing is that this application is devoid of merit. Accordingly, I dismiss it with no orders as to costs. DATED AND DELIVERED AT NAKURU THIS 16TH DAY OF SEPTEMBER, 2026. J. MATIVO https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1680/eng@2026-09-16 14

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........................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed. DEPUTY REGISTRAR Page 1 of 15 https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1680/eng@2026-09-16 15

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