Ngattah

3. Notably, prayer (2) of the application seeks extension of time to le and serve his application for certication out of time under Rule 4 of the Court of Appeal Rules, 2022. It is a basic fact that extension of time is a matter for a single judge under Rule 4 of the Court of Appeal Rules, 2022. In fact, as framed, the prayer seeks extension of time to le and serve an application for certication, a clear acknowledgement that prayer one must be allowed in order to open the door for the application for certication. 4. Despite seeking extension of time in prayer (2) to apply for certication, the applicant at prayer (3) is asking this Court to certify his intended appeal to the Supreme Court of Kenya against the Judgment and Orders of this Court delivered on 16th December 2025 in Civil Appeal No. 16 of 2019 (formerly CA No. which involves matters of general public importance. This prayer falls within the jurisdiction of a full bench. At prayer (4), the applicant seeks leave to appeal to the Supreme Court of Kenya against the entire split Judgment of the Court of Appeal delivered on 16th December 2025. Again, this prayer falls within the jurisdiction of a full bench. Notably, these two prayers depend on the outcome of prayer (2). This raises doubts as to the correctness of bundling such prayers in the same application. 5. “Omnibus applications” create severe procedural bottlenecks and structural problems for both the courts and the opposing parties. Courts highly discourage this "shotgun approach" (a strategy that inter alia covers a wide, random eld “with hit or miss results”) and prefer precise, structured litigation where each cause of action is clearly pleaded on its own merits. “Omnibus applications” create an untidy situation. The typical "untidy situations" created by omnibus applications manifest in several key ways among them: QUOTE 6. a. Jurisdictional Conicts and Procedural Incompetence. If the rules state a single judge can grant the extension but a full multi-judge panel must hear the reliefs sought, the application becomes structurally defective. (b) Blurring Mutually Exclusive Legal Standards. Parties often use omnibus applications to demand multiple remedies that are actually governed by vastly dierent legal tests and evidentiary thresholds. Courts reject these broad formulations because they bypass the distinct legal principles required for separate causes of action. (c) "Fishing" Expeditions and Ambiguous Prayers. Omnibus applications are often drafted as a safety net by practitioners who are uncertain of their exact strategy. (See Waweru & 2 others vs. Maina (Civil Application E002 of 2026) [2026] KECA 382 (KLR) (5 March 2026) (Ruling)). This places an unfair burden on the respondent, who must guess which case to meet and leaves the Court without a clear, denitive order to evaluate. 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)). 7. 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 https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1683/eng@2026-09-16 2

page 2 of 7

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. 8. 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. 9. It is also important for me to underscore that because these powers ow from dierent statutory and procedural sources, they cannot be conated into a single 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, reference or a certication as sought in this case 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 (supra). The standard procedure requires consecutive applications, not concurrent or combined ones. An applicant should le an application before a single judge seeking extension of time. Once time is extended, le a separate application before a full bench for a stay of execution or conservatory orders or a reference or certication as the case may be. 10. Nonetheless, I will only address prayer (2) of the application which falls within the jurisdiction of a single judge. As I do so, I will only consider the parties’ grounds and submissions relevant to the said prayer. Nothing more. 11. The applicant concedes that there is a delay of 6 months and 8 days post-judgment. The impugned judgement was delivered on 16th December 2025. The applicant’s explanation of the delay in his supporting adavit dated 24th June 2026 is two-fold as reproduced verbatim: (a) “the judgment was a split 2-1 decision. The majority and minority opinions presented contrasting views on spousal contributions. My legal team required substantial time to study both opinions, conduct deep comparative research on spousal contribution under Kenyan law, and formulate precise constitutional questions for the Supreme Court. (b) as the Legal Representative of the estate, the I had to consult extensively with the beneciaries of the estate, including the Interested Party, PAUL KINGORI NGATA, and my sister, KEZIAH NDUTTA, who resides in dierent parts of the County. Obtaining consensus on the appeal and mobilizing the capital required to secure legal representation and cover court fees for the Supreme Court took considerable time.” 12. The applicant maintains that the delay was not intentional and no prejudice will be suered by the respondent if the application is allowed. 13. In response to the application, the 1st respondent led a replying adavit on 29th July 2026 sworn by Samuel Kimani Mainga, its director. The salient averments are: (a) there has been an inordinate delay of 6 months in ling the application, and, (b) the explanation oered is unsatisfactory. 14. The 2nd respondent did not le a reply to the application or submissions. 15. The applicant led submissions dated 4th August 2026. He submitted that this Court has wide unfettered discretion under Rule 4 of the Court of Appeal Rules, 2022 and cited Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi (Civil Application Number Nai 235 of 1997) in support of the proposition that the factors to be considered include length of the delay, explanation for the delay, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1683/eng@2026-09-16 3

page 3 of 7

and merits of the intended appeal and the prejudice to the respondent. The applicant submitted that the 6 months and 8 days delay is justied by complexity of the decision. According to the applicant, his advocate required rigorous comparative research and precise constitutional formulation. Further, substantial time was required to obtain consensus from all the beneciaries of the estate. Further, no prejudice will be suered by the respondents. The applicant also argued that Article 159 (2) (d) of the Constitution which requires courts to administer substantive justice. Lastly, denying the applicant the extension sought will shut them out from litigating a monumental constitutional dispute. 16. The 1st respondent led submissions dated 11th August 2026. It dismissed the applicant’s contention that the judgment sought to be appealed against is complex requiring over 190 days to comprehend it and decide whether or not to appeal as factually untenable and legally unsustainable. Further, a dissenting judgment is not a source of uncertainty but a basis (if any) of illuminating the questions of law upon which an appeal may be preferred within the prescribed timeline. Further, the applicant was represented by counsel through out the proceedings, therefore, to suggest that counsel required more than 6 months merely to identify, research and formulate questions warranting certication is dicult to reconcile with ordinary demands of appellate practice. Viewed against the length of the delay this explanation falls short of the required cogency to justify this Court’s indulgency. 17. Regarding the argument attributing the delay to time taken gathering consensus from family members allegedly scattered in dierent parts of the country and the need to pool resources together to nance the proceedings, the 1st respondent dismissed it as not supported by evidence showing the alleged consultations or details of the eorts made. Further, consultations cannot be elevated to a sucient ground to justify the delay of over 6 months. 18. Under Rule 4 of the Court of Appeal Rules, 2022, an applicant seeking an extension of time to seek leave to appeal to the Supreme Court 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 as was held in 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. 19. Equally important is the fact that a plausible explanation is paramount in an application for extension of time. A satisfactory explanation is the "key that unlocks the Court's ow of discretionary favour." (See Andrew Chemaringo vs. Kibet [2018] KECA 701 (KLR)). 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 Companies & 2 Others (Civil Appeal (Application) E228 of 2023) [2023] KECA 834 (KLR) (7 July 2023) (Ruling)). 20. 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. (See Lwangu vs. Ndote & 23 Others (Civil Application E090 of 2025) [2026] KECA 397 (KLR) (5 March 2026) (Ruling)). 21. The grounds urged by the applicant as highlighted earlier are two- fold. One, his legal team required substantial time to study the majority and minority opinions, conduct deep comparative research https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1683/eng@2026-09-16 4

page 4 of 7

on spousal contribution under Kenyan law, and formulate precise constitutional questions for the Supreme Court. (b) he required time to consult extensively with the beneciaries of the estate who reside in dierent parts of the County to obtain consensus and mobilize the capital required to secure legal representation and cover court fees. 22. To my mind, the complexity of a case, the volume of the record, or the magnitude of documents does not constitute "sucient cause" to merit condonation for the late ling of an appeal or an application. The baseline rule is that any explanation for a delay must show that the party acted with bona de intent and diligence. In Oce of the Chief Post Master General vs. Living Media India Ltd. (2012) 3 SCC 563, the Supreme Court of India held that procedural or administrative complexities such as the time taken to compile voluminous records, obtain multiple approvals, or brief senior counsel on intricate matters cannot be used as a blanket excuse to bypass statutory limitation periods. The Court emphasized that the law of limitation applies equally to all and that mechanical claims of institutional or case complexity will not be tolerated. 23. In Ajit Singh Thakur vs. State of Gujarat [1981] 1 SCC 495 (rearmed in subsequent rulings like the 2025 decision in State of UP vs. Shrimati [2007] 12 SCC 627), the Supreme Court of India noted that "sucient cause" must be traced to an event or circumstance that actively prevented the party from ling the appeal within the permitted time frame. The fact that a case has complex legal or factual dimensions is an inherent characteristic of the dispute from day one; it is not an unexpected, supervening event that suddenly prevents a party from meeting a hard- statutory deadline. In 3M Company vs. Vikas Sinha [2022] 292 DLT 548, the Delhi High Court reiterated that the complexity of a matter or the extensive time needed to engage and brief expert legal counsel does not pause the statutory clock. 24. In Ncala vs. Park Avenue Body Corporate and Others (813/2023) [2026] ZASCA 16; [2026] 1 All SA 449 (SCA); 2026 3. SA 433 (SCA) (12 February 2026) the Supreme Court of Appeal of South Africa directly evaluated an argument where a litigant blamed a 68-day delay in ling an appeal partly on the "novelty and complexity of the issues," which supposedly required an intricate, multi-pronged legal strategy. The court restated that complexity does not override the standard criteria for condonation. The court reiterated the classic formulation which an applicant must provide a full, reasonable, and acceptable explanation for every period of the delay. Citing complexity does not absolve a legal team from failing to calculate time periods or submit applications within statutory limits. 25. In Grootboom vs. National Prosecuting Authority 2014 (2) BCLR 140 (CC), an authoritative benchmark decision regarding procedural compliance, it was observed that litigants frequently cite the volume of documents or the dicult nature of a case as an excuse for delay. The Court explicitly rejected the notion that the size, importance, or complexity of a case grants parties a license to ignore court rules. The Court held that "the rules are for the court and the court is for the rules." It claried that a condonation application is not a mere formality, and an excuse centered on the diculty or extensive nature of a matter does not relieve the applicant of their duty to act expeditiously. 26. In Dengetenge Holdings (Pty) Ltd vs. Southern Sphere Mining and Development Company Ltd [2013] ZASCA 5, the Supreme Court of Appeal of South Africa noted that in commercial and mining disputes, (which are inherently complex), the Court is frequently met with condonation requests where delays are blamed on intricate corporate structures, extensive records and complex statutory frameworks. The Court held that even in matters of immense economic scale and complexity, a non- https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1683/eng@2026-09-16 5

page 5 of 7

existent or deeply awed explanation for a delay cannot be rescued by the nature of the case alone. The Court established that where a delay is lengthy and the explanation is entirely inadequate, condonation may be refused regardless of the prospects of success or the underlying complexity of the merits. 27. Also relevant is the South African Supreme Court of Appeal decision in Madinda vs. Minister of Safety and Security 2008 4. 28. SA 312 (SCA) which expounded how complexity actually ts in. It stated complexity is only relevant if it directly explains why the delay occurred (e.g., if the complexity required highly specialized expert consultations that genuinely couldn't be concluded within the timeframe). If the complexity did not actively block compliance, it is legally irrelevant. However, if the delay is directly tied to a factual bottleneck (e.g., waiting for a highly technical, multidisciplinary expert report), then, the Court can condone the delay. Conversely, the Court will assess the reasonableness of the delay. For example, the applicant must show they acted with utmost diligence during that exact window to procure the expert report. From the above jurisprudence, it is manifestly clear that when an applicant cites the "complexity of the case" to justify an out-of-time appeal or application, courts apply the following multi-step test to reject or evaluate the claim: (a) complexity is a regular feature of litigation. If courts accept complexity as a sucient cause, the law of limitation would eectively be rendered obsolete for all high- stakes or non-routine matters; (b) the courts reason that a complex or bulky case demands greater diligence and promptness from the litigant and their counsel, rather than serving as an excuse for negligence; (c) to get a delay condoned, the applicant must explain every single day of the delay with precise facts. A broad, vague statement such as "the matter was too complex to draft quickly" fails this evidentiary standard; (d) the right of the successful party to enjoy the nality of a judgment cannot be frustrated merely because the losing party found the case dicult to process within the legal timeframe; (e) procedural timelines apply equally to simple and complex matters; (f) instead of acting as an automatic excuse, complexity is treated as just one variable within a broader, multi-factor test. 29. There is nothing to show the matters raised in the case are so complex that it required “specialized expert consultations which could not be concluded within the time prescribed by the law.” “Complexity” cannot be used as a general excuse. In any event, it’s trite that legal practitioners are expected to manage dicult cases within standard procedural time limits. Therefore, the alleged complexity of the case as presented does not meet the threshold to trigger this Court’s discretion. It is rejected. 30. The other ground urged by the applicant is that he required time to consult extensively with the beneciaries of the estate who reside in dierent parts of the County to obtain consensus and mobilize the capital required to secure legal representation and cover court fees. Courts world over reject the argument that an appellant needed time to discuss a legal matter with relatives, treating it as an indicator https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1683/eng@2026-09-16 6

page 6 of 7

of negligence rather than a genuine impediment. Seeking consensus or legal counsel from a family network is considered a personal choice, not an external constraint that prevents ling. In S. Palanisamy vs. Palani Gounder ILR (2023) 3 Mad 712, where an appellant claimed a delay of several thousand days due to "family situation, nancial constraints, and ill health," the High Court of Madras, India observed that such generalized, internal reasons simply indicate that the party sat on their rights or forgot about the matter, failing the benchmark for everyday diligence. 31. In Chinnamma vs. Executive Engineer, Karnataka Housing Board 2025 INSC 1104, the Supreme Court of India noted that vague domestic hurdles or lengthy family deliberations cannot validate a failure to comply with statutory timelines. If a litigant is aware of an adverse order, they are legally expected to act promptly. The Supreme Court of India has consistently held that vague personal choices, such as taking time to consult family members, or standard claims of nancial constraints do not constitute "sucient cause" to condone long delays or merit leave to appeal out of time. 32. In R (on the application of Kigen) vs. Secretary of State for the Home Department [2015] EWCA Civ 1286, the Court of Appeal of England held that waiting for a decision on legal aid or taking time to arrange alternative funding mechanisms (such as pooling family resources) is not an acceptable reason for failing to comply with court deadlines. In Sayers vs. Clarke Walker (A Firm) [2002] EWCA Civ 645, the court made it clear that the time limit for appealing is intentionally short to ensure nality. Time spent by an individual, a company, or a family deliberating, consulting advisors, or weighing the nancial risks of an appeal does not constitute a valid reason for missing the deadline. The decision to appeal must be made and executed within the statutory window. 33. While courts occasionally show leniency to highly marginalized or indigent litigants who lack means to access justice, the baseline rule is that mere nancial stringency or a poor nancial condition is not a blanket excuse to ignore the law of limitation. For a reason to qualify as a "sucient cause," it must stem from an external, supervening circumstance that was completely beyond the applicant's control. The law draws a sharp, non-negotiable distinction between insurmountable external obstacles (which the Court will condone) and internal personal choices or lack of diligence (which the Court will reject). I am totally persuaded that the two reasons proered by the applicant do not stem from an external, supervening circumstance that was completely beyond the applicant’s and his advocate’s control, therefore, there is no basis for me to exercise my discretion in the applicant’s favour. Accordingly, I nd that this application is devoid of merit and dismiss it with costs to the respondent. DATED AND DELIVERED AT NAKURU THIS 16TH DAY OF SEPTEMBER, 2026. J. MATIVO ........................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1683/eng@2026-09-16 7

page 7 of 7