Philip Juma Akoth v Maxwell Otieno Odongo & 4 Others

file and serve an application for certification that a matter of general public importance is involved in the intended appeal to the Supreme Court and for leave to Page 2 of 11

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appeal to the Supreme Court from the judgment of the Court of Appeal delivered on 3rd October, 2025, in Civil Appeal No. E027 of 2021, and that the application for certification and leave filed on 22 nd December, 2025, be deemed as duly filed within time. The applicant also seeks costs of the application. [2] The applicant states that he was the appellant in Civil Appeal No. E027 of 2021 which was determined by this Court (H. A. Omondi, L. Kimaru and L. Achode, JJ.A.). By a judgment delivered on 3 rd October, 2025, the Court dismissed his appeal with costs to the 1 st respondent. Being dissatisfied with that decision, the applicant expressed his intention to challenge the judgment before the Supreme Court of Kenya. [3] That pursuant to that intention, a Notice of Appeal was filed on 6 th October, 2025, in accordance with Rule 36 of the Supreme Court Rules. He further states that he was required under Rule 42 of the Court of Appeal Rules to file an application for certification that the intended appeal raises matters of general public importance and to seek leave to appeal to the Supreme Court within fourteen days window provided following the judgment. [4] The applicant attributes the failure to file the application within time to circumstances beyond his control. He contends that his Page 3 of 11

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advocate fell seriously ill on 16th October, 2025, and required hospitalization and, while Page 4 of 11

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still recovering, was involved in a road traffic accident on 22 nd /23rd November, 2025, which further incapacitated him and prevented him from attending to his professional duties. [5] According to the Applicant, these occurrences occasioned the delay in filing the application for certification and leave. He further contends that the intended application for certification and leave was eventually filed on 22nd December, 2025, albeit out of time and without prior leave of the Court. He maintains that the delay was neither deliberate nor inordinate and was solely occasioned by the illness and subsequent accident involving his advocate. [6] The applicant asserts that the intended appeal raises arguable issues deserving consideration by the Supreme Court and that unless time is enlarged, he stands to suffer substantial prejudice. He further states that the 1st respondent had, through his advocates, issued a notice signifying an intention to pursue his eviction from the suit property, thereby necessitating urgent intervention by the Court to preserve his right of appeal. [7] The application is supported by the affidavit of Moses J. A. Orengo, learned counsel in which he reiterates and expounds the matters set out in the application and emphasizes that the delay in filing the application for certification and leave arose solely from his Page 5 of 11

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illness and subsequent Page 6 of 11

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involvement in a road traffic accident. He further avers that the intended appeal to the Supreme Court raises issues with high prospects of success and that it is in the interests of justice that the Court exercises its discretion and enlarge time to enable the applicant pursue the intended appeal. [8] The application is opposed by the 1st respondent, through a Replying Affidavit, in which he depones that both the application for extension of time and the application for leave to appeal to the Supreme Court are devoid of merit and ought to be dismissed. He contends that the applicant failed to comply with the prescribed timelines and has not furnished a satisfactory explanation for the delay, asserting that the reasons advanced by counsel do not adequately account for the period of inaction preceding the filing of the application. [9] He further deposes that the application for extension of time was merely an afterthought intended to cure fatal procedural defects and that there exists no basis for the Court’s exercise of discretion in the Applicant’s favour. He also maintains that the intended appeal does not raise any matter of general public importance within the meaning of Article 163(4)(b) of the Constitution, the dispute being a private and fact- specific contest over ownership of the suit property that has Page 7 of 11

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already been conclusively determined by the courts below. Page 8 of 11

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[10] He contends that the judgments of the trial court and the Court of Appeal were sound, that the applicant's claim was founded on documents incapable of displacing his title to the suit property, and that the intended appeal lacks any jurisprudential or public significance warranting the intervention of the Supreme Court. He further depones that the application was precipitated by steps taken by the respondent to enforce the judgment and secure vacant possession of the suit property, and urges the Court to dismiss the application with costs. The other respondents did not file any papers in opposition to or in support of the application [11] The application is supported by a further affidavit sworn by Moses J. A. Orengo on 14th January 2026, in which he responds to the issues raised in the 1st respondent’s replying affidavit and reiterates that the delay in filing the application was occasioned by his illness and subsequent road traffic accident, whose effects persisted beyond November 2025. He depones that the accident particularly affected his eyesight, thereby hampering his ability to prepare the requisite documents, and that he only recovered sufficiently to complete and file the application for certification on 22nd December 2025. [12] He further disputes the contention that he was fit enough to file the substantive application but incapable of simultaneously seeking Page 9 of 11

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extension of time, maintaining that the delay of eight days in filing the present application was neither unreasonable nor inordinate. Accordingly, he urges the Court to find that a satisfactory explanation has been offered for the delay and to exercise its discretion in favour of the applicant. [13] Both parties filed written submissions. The applicant’s submissions are to the effect that this Court has wide and unfettered discretion under Rule 4 of this Court Rules to extend time where sufficient cause has been demonstrated. Counsel relied on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR for the position that, in considering an application of this nature, the Court should take into account the length of the delay, the reason for the delay, the prejudice likely to be suffered by the respondent, whether or not the intended appeal is arguable and the interests of justice. [14] Reliance was also placed on Sokoro Savings and Credit Cooperative Society Ltd v Abeid Mwamburi [2023] KECA 381 (KLR) and Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, where the Court reiterated that extension of time is a discretionary remedy to be exercised upon a satisfactory explanation for the delay and on a case-by-case basis. Counsel submitted that the Page 10 of 11

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delay had been adequately explained, was excusable, and that the intended appeal was Page 11 of 11

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arguable and should be accorded an opportunity to be ventilated on its merits in furtherance of the interests of justice. [15] The 1st respondent’s written submissions in opposition to the application were that the delay was inordinate and had not been satisfactorily explained, thereby disentitling the applicant to the equitable relief sought. Counsel submitted that the Court’s discretion under Rule 4 must be exercised judicially and only upon the demonstration of sufficient and credible reasons for the delay. It was further argued that the applicant had failed to establish exceptional circumstances warranting the Court’s intervention and had not demonstrated the arguability of the intended application for certification. The 1st respondent contended that the intended appeal did not raise any constitutional issue or matter of general public importance capable of invocation of the Supreme Court’s jurisdiction and that extension of time would occasion prejudice to the respondent by further delaying him the enjoyment of the fruits of the judgment. On that basis, the Court was urged to decline the exercise of its discretion and dismiss the application with costs. [16] The application before the Court seeks enlargement of time within which to file an application for certification and leave to appeal to the Supreme Court and for the application already filed out of time Page 12 of 11

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deemed as properly on record. This Court's jurisdiction to entertain such an Page 13 of 11

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application is donated by Rule 4 of the Court of Appeal Rules, which confers upon the Court wide and unfettered discretion to extend time for the doing of any act authorized or required by the Rules upon such terms as it considers just. [17] The principles governing the exercise of such discretion are now well settled. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others (supra), the Supreme Court held that extension of time is not a right but an equitable remedy available to a deserving party at the discretion of the Court. The Court identified the relevant considerations as including the length of the delay, the reason for the delay, and whether the circumstances of the case warrant the exercise of the Court's discretion amongst other considerations. These principles have consistently guided courts when determining applications of this nature. [18] I have considered the motion, the affidavits filed by the parties, and their respective submissions. The question for determination is whether the applicant has furnished sufficient cause to justify the exercise of the Court's discretion in his favour. [19] The explanation advanced by the applicant is that the delay was occasioned by the illness of counsel and a subsequent road traffic Page 14 of 11

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accident which allegedly impaired counsel's ability to discharge his Page 15 of 11

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professional obligations within the prescribed timelines. This explanation has been amplified in the further affidavit wherein counsel depones that the injuries sustained affected his eyesight and ability to prepare the requisite documents. The applicant therefore urges the Court to find that the delay was involuntary and excusable. [20] The 1st respondent, on the other hand, contends that the explanation tendered is inadequate and does not satisfactorily account for the entire period of delay. It is argued that the applicant has failed to demonstrate diligence and that the application was only precipitated by the commencement of execution proceedings. The Respondents further maintain that the intended appeal does not raise any matter of general public importance deserving certification. [21] From the material placed before me, it is evident that there was indeed a delay in filing the application for certification and leave. However, the delay cannot be said to be inordinate. More importantly, the applicant has offered an explanation which, though contested, has not been shown to be manifestly false or made in bad faith. Courts have repeatedly emphasized that where a reasonable explanation is offered, the discretion to extend time should be exercised in a manner that facilitates rather than impedes access to justice. See Philip Keipto Chemwolo & another v Augustine Kubende [1986] KLR Page 16 of 11

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14. Page 17 of 11

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[22] I am also alive to the principle that mistakes, inadvertence or difficulties encountered by counsel do not automatically entitle a litigant to extension of time, see Fahim Yasin Twaha v Timamy Issa Abdalla & 2 Others [2015] eKLR. Nonetheless, each case must be considered on its own peculiar facts. In the present case, the explanation proffered is supported by sworn depositions, and a medical report and demonstrates circumstances which, if accepted, and which I do, are capable of affecting counsel's ability to act within the stipulated period. [23] As regards prejudice, the respondents have not demonstrated any prejudice that cannot be compensated by an award of costs. While the respondents are undoubtedly entitled to enjoy the fruits of the judgment, the grant of a modest extension of time would not extinguish those rights but would merely afford the applicant an opportunity to pursue and exhaust the appellate process provided by law. [24] At this stage, it is neither necessary nor proper to make definitive pronouncements on whether the intended appeal ultimately satisfies the threshold for certification under Article 163(4)(b) of the Constitution which unfortunately the 1 st respondent has dwelt on at length in both in the Replying Affidavit as well as in his written Page 18 of 11

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submissions. That issue will fall for determination by the bench that will be constituted to hear the substantive application for certification. All that is required at this Page 19 of 11

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juncture is a consideration of whether the applicant has demonstrated sufficient cause for the delay. [25] Taking into account the relatively short period of delay, the explanation tendered, the absence of demonstrable prejudice to the respondents, and the need to determine disputes on their merits whenever possible, I am persuaded that the applicant has established a proper basis for the exercise of this Court's discretion under Rule 4. [26] Accordingly, I find that the applicant has made out a case for extension of time. The application is merited and is hereby allowed. Time is extended and the application for certification and leave to appeal to the Supreme Court filed on 22nd December, 2025, shall be deemed as duly filed and properly on record upon payment of the requisite fees. The costs of the application shall however go to the 1 st respondent. Dated and delivered at Kisumu this 21 st day of September, 2025. ASIKE MAKHANDIA ……………….…... ……………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 20 of 11

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