Jacob Ogola Ondiege v The Commissioner of Lands & 76 Others

[1] The applicant, Jacob Ogola Ondiege, by way of a Notice of dated 9th April 2026, brought pursuant to Rules 4 and 75 of the Court of Appeal Rules, 2022, seeks enlargement of time to file and serve a Notice Page 2 of 14

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of Appeal and Record of Appeal out of time against the ruling and order delivered on 8th February 2024 in Kisumu ELC No. 823 of 2016. He further seeks that the Notice of Appeal already lodged be deemed as duly filed and served out of time, and that costs of the application abide the outcome of the intended appeal. [2] The grounds in support of the application are that, the applicant was aggrieved by the ruling and order rendered on 8 th February 2024 in Kisumu ELC No. 823 of 2016 and intends to challenge the same before this Court. He contends that although he desired to appeal, the Notice of Appeal was not filed within the prescribed period due to circumstances beyond his control. He maintains that the delay, though prolonged, has been sufficiently explained and was neither deliberate nor intended to obstruct the course of justice. He further asserts that the intended appeal raises weighty constitutional and legal issues concerning compulsory acquisition of land and compensation thereof, and that it is arguable and has reasonable prospects of success. He contends that the respondents will not suffer prejudice incapable of compensation by an award of costs if the orders sought are granted. [3] The application is supported by the affidavit of the applicant in which he deposes that following the delivery of the impugned Page 3 of 14

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ruling, he consulted his then advocate regarding the possibility of lodging an Page 4 of 14

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appeal but was advised that the intended appeal had minimal prospects of success and that the advocate intended to close the file as a result. He goes on to depose that despite making several follow-ups and attempts to obtain further guidance and a copy of the ruling, he was unable to take the requisite appellate steps within the statutory period. He states that by the time he personally obtained the ruling and appreciated the legal position, the period for lodging a Notice of Appeal had already lapsed. [4] The applicant further deposes that he is not legally trained and genuinely believed that his former advocate would take the necessary appellate steps where appropriate. He only later discovered that no Notice of Appeal had been filed and, upon obtaining further advice, came to the view that the ruling raised serious constitutional and evidentiary issues warranting appellate intervention. He adds that he lodged a complaint with the Judicial Service Commission and subsequently sought legal assistance through the Law Society of Kenya before eventually filing the Notice of Appeal out of time. According to the Applicant, the delay was occasioned by the withdrawal and discouragement of his former counsel, lack of timely legal assistance, financial constraints, lack of legal expertise, and efforts made in pursuing institutional redress. Page 5 of 14

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[5] The applicant further avers that the dispute concerns ancestral land allegedly belonging to his late father which was compulsorily acquired by the Government several decades ago. He contends that no evidence of full compensation for the land was produced before the trial court and that the documentation relied upon related only to developments on the land. He maintains that the subsequent transfer of the land to private entities without proof of compensation raises serious constitutional concerns relating to property rights and compulsory acquisition. [6] The applicant asserts that the intended appeal is arguable and raises substantial questions, including whether compulsory acquisition can be sustained in the absence of full and prompt compensation, whether a Gazette Notice alone is sufficient to extinguish proprietary rights, whether the burden of proof was properly applied by the trial court, and whether limitation doctrines are applicable to constitutional claims. He contends that unless the orders sought are granted, he stands to lose the suit property without compensation and will be denied an opportunity to ventilate the constitutional grievances raised in the intended appeal. He therefore urges the Court to exercise its discretion in his favour and regularize the appellate process in the interests of justice. Page 6 of 14

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[7] The application is opposed by a replying Affidavit sworn by Monica Ogada the Pension Manager of the 3rd respondent, Maseno University College Staff Retirement Scheme on her on behalf and on behalf the 4th to 76th respondents. She deposes that the applicant does not merit the exercise of this Court's discretion under Rule 4 of the Court of Appeal Rules, as the grant of such relief being discretionary is available only to deserving parties. She states that the applicant admittedly knew of the judgment delivered on 8 th February 2024 and was duly advised by his advocates regarding the available appellate options, the applicable timelines and the prospects of the intended appeal succeeding. She further states that communication between the applicant and his advocates demonstrates that he was aware that a Notice of Appeal was required to be lodged within fourteen days and that he had been advised that the intended appeal had limited chances of success. [8] According to the deponent, the applicant has not been candid with the Court and cannot blame his former advocates for the failure to act within time, as the evidence shows that he was fully aware of the relevant timelines and consciously elected not to pursue the appeal. She contends that the delay in filing the intended appeal is inordinate, deliberate and inexcusable, and that Page 7 of 14

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the present application is merely an afterthought brought after the matter had been conclusively Page 8 of 14

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determined. The deponent further asserts that the intended appeal is not arguable, raises no constitutional issue warranting the intervention of this Court, and relates principally to dissatisfaction with the amount of compensation awarded rather than the legality of the compulsory acquisition process itself. She additionally states that the respondents would suffer substantial prejudice if the application was allowed, as the judgment has already been executed, title deeds processed, and some of the affected parcels of land, transferred to third parties on the legitimate expectation that the litigation had come to an end. Accordingly, she urged the Court to find that the application constitutes an abuse of the court process and to dismiss it with costs. [9] There was no response to the application by the 1st, 2 nd and 77th respondents on record as at the time of crafting this ruling. [10] The application is further supported by a Further Affidavit sworn by the applicant on 8th June 2026, in which he reiterates that the delay was occasioned by circumstances beyond his control and responds to the issues raised in the respondents’ replying affidavit. He maintains that he diligently pursued the issue through various avenues, disputes the respondents’ contention that the intended appeal is unmeritorious, and asserts that the intended appeal raises Page 9 of 14

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substantial and arguable issues warranting consideration by the Court. He further challenges Page 10 of 14

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the alleged prejudice to the respondents, contending that the same has not been substantiated, and consequently urges the Court to allow the application in the interests of justice. [11] In arguing his application, the applicant relied on his written submissions in which he has submitted that the Court's jurisdiction under Rule 4 of the Court of Appeal Rules is discretionary and ought to be exercised judicially upon consideration of all the circumstances of the case. He relied on Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 for the proposition, in determining whether to extend time, the Court considers the length of the delay, the reason for the delay, the arguability of the intended appeal and the prejudice likely to be suffered by the respondent. The applicant further cited Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others - Supreme Court Application No. 16 of 2014 [2014] eKLR, where the Supreme Court of Kenya held that extension of time is an equitable remedy granted at the discretion of the Court upon a satisfactory explanation of the delay and a consideration of the overall interests of justice. He also relied on Fakir Mohamed v Joseph Mugambi & 2 Others [2006] KECA 240 (KLR) for the proposition that the discretion under Rule Page 11 of 14

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4 is unfettered and Page 12 of 14

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permits the Court to consider all relevant circumstances of the case rather than confining itself to a rigid set of factors. [12] Further reliance was placed on Chepkonga v Njoroge & 2 Others, Bogonko v Ndege [2023] KECA 1293 (KLR), and Said v Shume & 2 Others [2024] eKLR, which reaffirmed the Court's broad discretion to extend time where a litigant demonstrates diligence after default, offers a satisfactory explanation for the delay, and where no undue prejudice would be occasioned to the respondent. Counsel consequently submitted that the intended appeal is arguable, that procedural default should not automatically extinguish a litigant's right of appeal, and that the interests of justice, together with Article 159(2)(d) of the Constitution, favour the exercise of the Court's discretion in the Applicant's favour. [13] The 3rd to 76th respondents, in their written submissions dated 9th September 2026, opposed the application and submitted that the power to extend time under Rule 4 of the Court of Appeal Rules is discretionary and must be exercised judiciously upon consideration of established principles. Relying on the case of George Mwenda Muthuri v Mama Day Nursery and Primary School Limited [2014] KECA 497 (KLR) the respondents submitted that the factors relevant to the exercise of the Court's Page 13 of 14

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discretion include the length of the delay, the Page 14 of 14

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reason for the delay, the chances of success of the intended appeal, and the degree of prejudice likely to be suffered by the respondent. They further cited Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR, where the Court reiterated that although the discretion under Rule 4 is unfettered, it must be exercised on the basis of reason and sound judicial principles rather than whim or caprice. [14] The respondents contended that the delay of over two years was inordinate and had not been satisfactorily explained. They further relied on Rehema Ali Imran v Eedi Kenya Limited [2026] KECA 208 (KLR) for the principle that the filing of a Notice of Appeal is not dependent on the availability of certified proceedings or judgment and that delay attributed to the absence of such documents is inexcusable. According to the respondents, the reasons advanced by the applicant did not constitute sufficient cause, the intended appeal had minimal prospects of success, and the grant of the orders sought would occasion substantial prejudice to parties who had acted on the finality of the judgment. They accordingly urged the Court to decline the invitation to exercise its discretion and dismiss the application with costs. [15] The application before Court seeks enlargement of time within Page 15 of 14

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which to lodge and serve a Notice of Appeal against the ruling and order Page 16 of 14

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of the Court below delivered on 8 th February 2024. The jurisdiction of this Court to grant such relief is donated by Rule 4 of the Court of Appeal Rules, which vests in the Court a wide and unfettered discretion to extend time for the doing of any act authorized or required by the Rules. [16] The principles governing the exercise of that discretion are now settled. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi (supra), the Court held that, in considering whether to extend time, the Court takes into account, amongst other factors, the length of the delay, the reason for the delay, the chances of success of the intended appeal, and the degree of prejudice likely to be occasioned to the respondent. Those principles have since been reaffirmed in numerous decisions, including Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others (supra), where the Supreme Court of Kenya emphasized that extension of time is an equitable remedy available only to a deserving litigant who satisfactorily explains the delay and demonstrates that the interests of justice warrant the Court's intervention. [17] I have considered the application, the supporting affidavit, the various affidavits, the rival submissions and the law. The singular Page 17 of 14

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issue Page 18 of 14

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for determination is whether the applicant has made out a case for extension of time. [18] The primary consideration in the present application is the delay. The ruling sought to be impugned was delivered on 8 th February 2024. The present application was filed more than two years later. Such delay is manifestly inordinate and calls for a candid, satisfactory and comprehensive explanation. [19] The applicant attributes the delay to circumstances beyond his control, including challenges in securing legal representation, financial constraints, and efforts undertaken through other institutional channels following the delivery of the ruling. He contends that these circumstances demonstrate persistence rather than indifference and that he remained desirous of challenging the decision. [20] The respondents, on the other hand, maintain that the applicant was fully aware of the ruling, the timelines governing an appeal, and the available legal options. They contend that the material placed before Court demonstrates knowledge on the part of the applicant of the appellate process and that the delay cannot therefore be attributed solely to external circumstances. They further contend that the dispute has long since progressed, thirdPage 19 of 14

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party interests have arisen, and the intended appeal is devoid of merit. Page 20 of 14

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[21] I have carefully weighed these competing positions. The delay is undoubtedly lengthy and, it is evident from the material before me that the applicant was at all times not completely oblivious of timelines required to move the court as appropriate. A day after the delivery of the ruling the applicant was in contact with his erstwhile lawyers who advised him that intended appeal was not viable but if he wished to pursue the appeal nonetheless, he must file notice of appeal immediately but not later than 14 days from the date of the ruling. [22] Though the record discloses attempts by the applicant to pursue various avenues or interventions in relation to the dispute, albeit always through the proper appellate channels, that alone could not divest him from complying with the Rules of this Court with regard to filings. The delay in my view was therefore occasioned by complete indolence or by a misguided but persistent attempt to seek redress. See Raiply Woods (K) Limited v Erick Kironget Ngeywo & 10 others [2019] KECA 285 (KLR) and David Kamau Kariuki v Stanley Theuri & 2 others [2020] KECA 360 (KLR). [23] Further the delay cannot be attributed to lack of finances, as Rule 120 of the Court of Appeal Rules permit an indigent person to Page 21 of 14

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sue as a pauper. The applicant failed to take advantage of this rule to his detriment. As properly submitted by the respondents the applicant was Page 22 of 14

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throughout aware of the applicable timelines and should therefore bear the consequences of his inaction. [24] As regards the intended appeal, I am mindful that at this stage the Court is not called upon to make definitive findings on the merits. The applicant need only demonstrate that the intended appeal is not frivolous. From the draft grounds and the issues alluded to in the affidavits, I am unable to conclude that the intended appeal is wholly devoid of arguability. I would however wish that the applicant took advice from his erstwhile advocates regarding the strength of his intended appeal. [25] On prejudice, the respondents have asserted that the judgment has been substantially implemented and that third-party rights have accrued. Those concerns are legitimate and deserve serious consideration. The applicant has not sufficiently countered this assertion demonstrating prejudice of such magnitude as would be capable of being addressed through appropriate orders should the intended appeal ultimately fail. [26] Having considered all the circumstances of the case, I am persuaded that this is one of those rare instances where the interests of substantive justice not outweigh the procedural defaults complained Page 23 of 14

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of. The delay is inordinate and the explanation offered is not entirely satisfactory, [27] Accordingly, l am satisfied that the applicant has not established sufficient cause for the exercise of this Court's discretion under Rule 4 of the Court of Appeal Rules in his favour. The application is therefore dismissed with costs to the 3 rd to 76th respondents Dated and delivered at Kisumu this 22nd day of September, 2026. ASIKE-MAKHANDIA ………………..………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 24 of 14

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