Njuki v Ngunjiri & 3 others

4. The applicant was aggrieved by the judgment and sought to appeal, but did not le the requisite documents as prescribed by the Rules of this Court. She therefore led an application dated 25th October 2024 seeking extension of time under rule 4 of the Rules of this Court. 5. Upon considering the application, the learned single judge found that the three-year delay between the date of the judgment and the date of the application, 25th October 2024, was prima facie inordinate. While accepting that an advocate's mistake ought not ordinarily be visited upon a litigant, the single judge observed that the applicant had herself failed to demonstrate what steps she had taken to follow up her case with her advocates; that she had led an application for stay of execution but that after the dismissal of the application on 28th February 2023, the applicant took approximately another year before ling the application for extension of time. The learned judge concluded, therefore, that there was unexplained inaction on the part of the applicant and dismissed the application, with no order as to costs. 6. The applicant then led the application dated 16th July 2025 seeking a reference to this Court. The applicant also sent a letter of the same date, also seeking a reference from the said ruling. The reference was placed for hearing before us on 4th May 2026 when neither the applicant nor the respondents appeared. 7. We noted that there were submissions by the applicant dated 27th April 2026 and by the respondent dated 12th November 2024, though the latter submissions, it would appear, related to the application for extension of time. At any rate, this Court determined to deal with the reference on the basis of the written submissions, and we reserved our ruling for 25th September 2026. 8. Thereafter, the respondents led an application dated 22nd May 2026 seeking an order for setting aside the proceedings of 4th May 2026 or, in the alternative, to consider the respondents’ replying adavit sworn on 14th May 2026 and submissions dated 15th May 2026 in determining the reference. In a ruling dated 31st July 2026, this Court (M’Inoti, Mumbi Ngugi & Achode, JJ.A) allowed the alternative prayer in the application dated 22nd May 2026. 9. We shall, accordingly, consider the respondents’ replying adavit and submissions in addressing ourselves to the applicant’s reference from the ruling of Odunga, JA of 28th November 2024 contained in the letter and application dated 16th July 2025. 10. In her letter and application, the applicant contends that the learned single judge failed: to appreciate the interests of justice; to give sucient weight to the mistakes of her former advocates; to appreciate that the respondents would suer no prejudice; and improperly delved into the merits of the intended appeal. 11. The applicant makes further arguments in her letter and application relating to what she terms inconsistency of decisions of the High Court, the applicant's rights as a surviving joint proprietor, her constitutional rights and the alleged irregularity of the respondents' claims. 12. In the submissions dated 27th April 2026, the applicant submits, inter alia, that the delay in ling the appeal was neither inordinate nor deliberate; that it was occasioned solely by the inadvertence and mistake of her former advocate on record; that she was a lay person and had entrusted her advocate with the responsibility of safeguarding her legal interests, and was, at all material times, desirous of pursuing the appeal. The applicant contends that she only became aware of the judgment several months after it was delivered and despite her repeated attempts to follow up, her former advocate ignored her calls and failed to keep her informed. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1704/eng@2026-09-25 2

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13. The respondents oppose the application by a replying adavit sworn by the 1st respondent on 14th May 2026 and written submissions dated 15th May 2026. The respondents raise two issues in their response regarding the competence of the reference. They point out that the ruling of the learned single judge was delivered on 28th November 2024, whereas the applicant’s reference letter and application dated 16th July 2025 were not led until eight (8) months later. They contend that the reference was lodged outside the seven-day period prescribed by rule 57(1)(b) of the Court of Appeal Rules, 2022, and without leave to do so out of time. 14. It is their contention, further, that under rule 57(2), on a reference from a decision of a single judge, no additional evidence shall be adduced, and the annexure to the letter and application are unprocedural and unknown to the law. 15. We have considered the letter of reference and the application dated 16th July 2025. We have also considered the decision of the single judge dated 28th November 2024 and the provisions of rule 57 of this Court’s Rules 2022. Titled ‘Reference from decision of a single judge’, the rule provides as follows: 1. 2. Where under the proviso to section 5 of the Act, any person, being dissatised with the decision of a single judge— a. … b. in a civil matter, wishes to have any order, direction or decision of a single judge varied, discharged or reversed by the Court, that person may apply therefor informally to the judge at the time when the decision is given or by writing to the Registrar within seven days thereafter. At the hearing by the court of an application previously decided by a single judge, no additional evidence shall be adduced. (Emphasis added). 16. In this case, the ruling of the single judge was delivered on 28th November 2024. A letter of reference to the Registrar should have been sent within 7 days thereof that is by 5th December 2024 or thereabouts. The letter of 16th July 2025, almost eight months later, is way out of time. No explanation for the delay has been oered, save for a vague reference to the applicant’s present advocates, Ondieki & Ondieki, being instructed on 15th July 2025. In the circumstances, the letter of 16th July 2025, purporting to be a reference under rule 57, does not constitute a valid reference under the said rule, and it is hereby dismissed. 17. Regarding the application dated 16th July 2025 purporting to be a reference under rule 57, we note that there is no provision in the said rule 57 for a reference by way of an application. Accordingly, we nd that the application dated 16th July 2025 is incompetent, and it is hereby struck out. 18. We make no order as to costs. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026 MUMBI NGUGI ………………………………. JUDGE OF APPEAL L. A. ACHODE …………………………….. JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1704/eng@2026-09-25 3

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K. KIGEN ………………………………….. 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/2026/1704/eng@2026-09-25 4

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