Jotham Aggrey Anguko Mukhobi v James Obuli Mukhobi & Jairus Harrison Mukhobi

Appointment of a Next Friend” pursuant to Order 9 Rule 2 of the Civil Procedure (Amendment) Rules of 2020 sworn on 9th February 2026. No submissions had been filed by the applicant on record as at the time of hearing his application. Ruling - KAK Civil Appeal (Application) No. E063 of 2026 (Formerly KSM Civil Appeal (Application) No. Page 2 of 8

page 2 of 15

2. The applicant seeks the following substantive orders in the said application: “2. THAT: this court be pleased to expand the time for filing of the Memorandum of Appeal in this matter. 3. THAT: the Memorandum of Appeal filed in this matter on the 12th day of November, 2025 be deemed to be duly filed and properly on record. 4. THAT: this court be pleased to order a stay in the implementation of the orders of the subordinate court in Vihiga Civil Case No 06 of 2010 pending the hearing and determination of this application. 5. THAT: this court restrain the Officer Commanding Luanda Police Station from participating in any act against the appellant herein on the orders of Mr. Shihemi, an advocate of the High Court of Kenya. 6. THAT: this court restrain the Chief of Ebusakami Location from participating in any act against the appellant herein on the orders of Mr. Shihemi, an advocate of the High Court of Kenya. 7. THAT: this court be pleased to allow the Appellant’s son, Gilbert Jairus Ounza, to appear as the Appellant’s next friend in this matter. 8. THAT: the costs of this application be provided for. 3. The application was placed before me as a single Judge to hear and determine the first two prayers for extension of time and possibly the prayer for leave to have the Ruling - KAK Civil Appeal (Application) No. E063 of 2026 (Formerly KSM Civil Appeal (Application) No. Page 3 of 8

page 3 of 15

appellant represented by his son as next friend. The applicant will be required to move a full bench of this Court Ruling - KAK Civil Appeal (Application) No. E063 of 2026 (Formerly KSM Civil Appeal (Application) No. Page 4 of 8

page 4 of 15

as regards the remaining prayers, in light of the provisions on the jurisdiction of a single Judge as set out in Rule 55 of the Court of Appeal Rules of 2022 as follows: 55. (1) Each application, other than an application specified in sub- rule (2), shall be heard by a single judge: Provided that such application may be adjourned by the judge for determination by the Court. (2) This rule shall not apply to— (a) an application for leave to appeal; (b) an application for a stay of execution, injunction, or stay of further proceedings; (c)an application to strike out a notice of appeal or an appeal; or (d)an application made as ancillary to an application under paragraph (a) or (b) or made informally in the course of a hearing. 4. I will therefore restrict myself to the pleadings on the prayers for extension of time and leave to be represented by a next friend. As regards the prayers for extension of time, the gist of the applicant’s averments was that the Environment and Land Court of Kenya at Vihiga dismissed his petition on 10th July 2025, and he thereafter filed a Notice of Appeal on 23rd July, 2025 and had intended to use the twenty thousand shillings (KSh. 20,000/-) which he had deposited in Court as security for costs in filing the appeal. Ruling - KAK Civil Appeal (Application) No. E063 of 2026 (Formerly KSM Civil Appeal (Application) No. Page 5 of 8

page 5 of 15

The said deposit was refunded to Ruling - KAK Civil Appeal (Application) No. E063 of 2026 (Formerly KSM Civil Appeal (Application) No. Page 6 of 8

page 6 of 15

him on 22nd September 2025, whereupon he started preparation of this Record of Appeal and subsequently filed the Memorandum of Appeal on 10 th October, 2025, together with an application for expansion of time, which were however rejected by the Court’s CTS (Case Tracking System). Upon inquiry by his son on 30 th October, 2025, the registry of the Court of Appeal at Kisumu explained that he needed to file the appeal first, and the application thereafter, and he subsequently filed the Record of Appeal on 12th November, 2025. 5. James Obhuli Mukhobi and Jairus Harrison Mukhobi, the two respondents herein, each swore a replying affidavit on 23rd February 2026 in opposition to the application, and submissions dated 13th March 2026 were filed by their advocates on record. Their case is that the law required that the appellant files his appeal within 60 days which lapsed on 23rd September 2025, and the Memorandum of Appeal lodged on 10th October 2025 was already time barred as was the record of appeal that was filed on 13th December 2025. In addition, that the applicant had not attached any proof to show that the Court rejected his appeal through a message on the CTS, and no explanation has been given by the applicant for filing the appeal out of Ruling - KAK Civil Appeal (Application) No. E063 of 2026 (Formerly KSM Civil Appeal (Application) No. Page 7 of 8

page 7 of 15

time. This averment was reiterated in the respondents’ submissions, and their counsel also pointed out that the Ruling - KAK Civil Appeal (Application) No. E063 of 2026 (Formerly KSM Civil Appeal (Application) No. Page 8 of 8

page 8 of 15

application was an omnibus application, and the applicant had moved the Court under wrong provisions, namely Article 22 and 23 of the Constitution which concern the enforcement of the Bill of Rights. It was their submission that the applicant ought to have moved the Court under the correct provisions of the Constitution, Appellate Jurisdiction Act and Court of Appeal Rules. 6. I heard the application in chambers in the absence of the parties on 7th May 2026, and have considered the arguments put forth by the parties. On the prayer for extension of time to file a Memorandum of Appeal, the relevant timelines are provided in Rule 84 of the Court of Appeal Rules of 2022, which require an appeal to be instituted by lodging a memorandum of appeal and record of appeal within sixty days after the date when the notice of appeal. The hurdle that I face is whether extension of time to file a Memorandum of Appeal can be given in the absence of a record of appeal, and particularly so in light of the averment by the respondents that the record of appeal was also filed out of time on 12 th December 2025, which was not controverted by the applicant. 7. I am therefore inclined to deny the prayer for extension of time to file Ruling - KAK Civil Appeal (Application) No. E063 of 2026 (Formerly KSM Civil Appeal (Application) No. Page 9 of 8

page 9 of 15

a Memorandum of Appeal in the absence of a similar prayer with regards to the Record of Appeal. This is for the reason that the effect of granting Ruling - KAK Civil Appeal (Application) No. E063 of 2026 (Formerly KSM Civil Appeal (Application) No. Page 10 of 8

page 10 of 15

the prayer would be to short circuit and evade the additional requirements of Rule 84 which an applicant who is out of time in filing an appeal may be required to demonstrate with respect to the filing of a record of appeal. I accordingly find that the said prayers for extension of time to file a Memorandum of Appeal are not competently made, since the applicant has not been demonstrated that a record of appeal was filed in time, and the prayers are hereby struck out. 8. As regards the prayer for leave for the applicant’s son, one Gilbert Jairus Ounza, to appear as the applicant’s next friend in this appeal, the applicant averred that he is now aged eighty-seven (87) years, he has developed a health condition which has affected his legs and rendered him incapable of standing for a long time; he is not proficient in the English language; he cannot prepare a Record of Appeal and has to engage someone to assist him and he is currently old, unemployed and without a stable income, and cannot therefore engage an advocate. It is notable that this prayer was not opposed by the respondents. 9. Rule 22(3) of the Court of Appeal Rules of 2022 provides as follows in this respect as regards appearance by next Ruling - KAK Civil Appeal (Application) No. E063 of 2026 (Formerly KSM Civil Appeal (Application) No. Page 11 of 8

page 11 of 15

friend: “ (3) A person under disability that is a party to any proceedings Ruling - KAK Civil Appeal (Application) No. E063 of 2026 (Formerly KSM Civil Appeal (Application) No. Page 12 of 8

page 12 of 15

in the Court may appear by advocate or by his or her committee, next friend or guardian ad litem as the case may be, and where any person has acted as next friend or guardian ad litem in the court below for a person under disability and the person under disability becomes respondent in an appeal to the Court, the next friend or guardian ad litem may, if he or she desires to act as such in the appeal, lodge a consent to act as such and shall thereupon be deemed to have been duly appointed, and in any other case, the Court may appoint a guardian ad litem for the purposes of an appeal and the Court may at any time remove and replace any guardian ad litem, however appointed.” 10. Consequently, a next friend can only appear for a person who is under disability, and mostly for minors or person of unsound mind. The next friend is typically a parent or legal guardian who acts on the litigant's behalf because the individual lacks the legal capacity to file or defend an appeal independently. The applicant in this respect avers that he is not proficient in English, has health challenges, is old and unemployed. I am not convinced that these are the attributes of disability envisaged by the law to justify this Court to appoint the applicant’s son as a next friend, who can in any event still provide the applicant with the assistance he requires, without such appointment. I must Ruling - KAK Civil Appeal (Application) No. E063 of 2026 (Formerly KSM Civil Appeal (Application) No. Page 13 of 8

page 13 of 15

underscore that the primary purpose of the legal mechanism of next friend is to provide legal standing to individuals who lack the capacity to represent themselves, Ruling - KAK Civil Appeal (Application) No. E063 of 2026 (Formerly KSM Civil Appeal (Application) No. Page 14 of 8

page 14 of 15

and should therefore not be open to misuse and abuse. The said prayer for leave to have the applicant’s son be appointed next friend is declined for this reason. 11. In the end, the prayers in the applicant’s application that were the subject of this ruling are declined. The applicant is however at liberty to pursue the outstanding prayers which were not properly before me as a single Judge. There shall be no order as to the costs of the application, as the dispute herein involves family members. 12. Orders accordingly. Dated and delivered at Nairobi this 22nd day of May, 2026. P. NYAMWEYA. …………………………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Ruling - KAK Civil Appeal (Application) No. E063 of 2026 (Formerly KSM Civil Appeal (Application) No. Page 15 of 8

page 15 of 15