Wainoga v Goal South Sudan

Karanja, JA, sitting as a single Judge of this Court, who dismissed it with costs in a ruling delivered on 28th November 2025. 4. The applicant asserts that he is dissatised with the decision of the single Judge and would like to challenge it by way of a reference to a full bench. However, he did not lodge the reference within the prescribed seven-day period. He attributes the delay to inadvertence and diculties encountered in obtaining legal advice and instructions. He maintains that the approximately three-month delay was neither deliberate nor intended to obstruct the respondent or the administration of justice. 5. The applicant further contends that the intended reference is arguable and raises serious questions concerning the proper exercise of judicial discretion by the learned single Judge. He states that unless time is extended, he will be shut out of challenging the decision, thereby occasioning him grave injustice. He also points out that he has been unable to enjoy the fruits of his judgment for more than six years. 6. I have considered the application, the adavit in support thereof and the circumstances placed before the Court. The jurisdiction to extend time is conferred by rule 4 of the Rules, which provides that the Court may, on such terms as may be just, extend the time limited by the Rules, or by any decision of the Court or of a superior court, for the doing of any act authorised or required by the Rules. The discretion is wide and unfettered, and must nevertheless be exercised judicially and on the basis of the circumstances of each case. The factors ordinarily considered include the length of the delay, the reason for the delay, the arguability of the intended appeal or reference, and the degree of prejudice likely to be occasioned to the respondent if the extension is granted. See Leo Sila Mutiso v Helen Wangari Mwangi [1999] 2 EA 231. The Court is not required to consider those factors mechanically or exhaustively; the ultimate consideration is whether the interests of justice favour the grant of an extension. 7. In the present case, the applicant was required by rule 57(1)(b) of the Rules to lodge his reference within seven days of the decision of the single Judge. The issue therefore is whether the explanation advanced for the delay, viewed against the circumstances of the matter as a whole, warrants the exercise of the Court's discretion in the applicant's favour. 8. The delay herein is approximately three months. While the delay cannot be described as insignicant, neither, in the circumstances of this case, can it be said to be so prolonged as to disentitle the applicant from the Court's consideration of his application. The applicant has explained that the failure to lodge the reference within time arose from inadvertence and diculties in obtaining legal advice and giving of instructions. 9. The Court must, however, be cautious not to treat the mere invocation of inadvertence as an automatic explanation for delay. Each case must turn on its own circumstances as held in Tabuche v Tinga & 2 Others (Civil Appeal E003 of 2022) [2024] KECA 551 (KLR). 10. I have also considered the circumstances of the matter, and whether the intended reference is frivolous. At this stage, the Court is not called upon to determine the merits of the intended reference. It is sucient that the applicant has demonstrated that he wishes to challenge the exercise of discretion by the learned single Judge and that the intended reference raises issues that cannot, at this stage, be said to be plainly frivolous. In Charo v Mwashetani & 3 Others (Application 15 of 2014) [2014] KESC 47 (KLR), the Supreme Court held that even as it took due account of the facts of the case, it remained cognizant of the Court’s eternal mandate of responding appropriately to individual claims, as dictated by compelling considerations of justice. 11. The respondent's prejudice is another relevant consideration. Granting an extension will merely aord the applicant an opportunity to place before the full bench his challenge to that decision. Any prejudice https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1798/eng@2026-09-25 2

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that may arise can, in my view, be adequately addressed by imposing appropriate timelines for the ling and prosecution of the reference. 12. Having considered the totality of the circumstances, I am satised that the applicant has demonstrated sucient basis for the exercise of discretion in his favour. The interests of justice would, in the circumstances, be better served by allowing the applicant an opportunity to pursue the intended reference rather than shutting him out solely on account of the delay. 13. The second prayer on whether or not to vary the decision to the single Judge can only be determined by the full bench on consideration of the reference and I will not say more on it. 14. Consequently, the notice of motion dated 12th March 2026 is hereby allowed on the following terms: i. The time within which the applicant is required to lodge a reference to a full bench against the ruling of Karanja, JA, delivered on 28th November 2025, is hereby extended. ii. The applicant shall lodge and serve the reference within the next fourteen (14) days from the date hereof. iii. The costs of this application shall abide by the outcome of the intended reference. DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF SEPTEMBER 2026. ALI-ARONI ……………………………... 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/2026/1798/eng@2026-09-25 3

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