Miletus Charles Nyongesa v Zakayo Waswa

orders, the title was registered in the Respondent’s name on 10th November 2023. 3. The Applicant subsequently moved this Court for a review, which was dismissed on 24th October 2025 by a bench constituted of Asike- Makhandia, H.A. Omondi & A.O. Muchelule, JJ.A. The Applicant now seeks to move the Supreme Court, but having missed the statutory deadline, he requires an extension of time. 4. Before considering the merits, I must address the procedural infirmities plaguing this application. The Applicant invokes Rule 43 of the Court of Appeal Rules, 2022, which is merely a jurisdictional provision. The substantive power to extend time is conferred by Rule 4 of the Court of Appeal Rules, 2022, and the specific procedural pathway for an out of time certification application is Rule 41(3) of the Court of Appeal Rules, 2022. 5. Furthermore, the Applicant erroneously cites Rule 42 of the Court of Appeal Rules, 2022, asserting a 14-day timeline. Rule 42 of the Court of Appeal Rules, 2022 applies to certification of applications before the High Court; the operative rule for certification at the Court of Appeal is Rule 41(2) of the Court of Appeal Rules, 2022, which prescribes a 30- day window. 6. Finally, the Applicant proceeds on the flawed premise that time runs from the date of the Review Ruling of 24 th October 2025. As correctly submitted by the Respondent, a pending review does not toll time for a certification application, more so where, as held in Fredrick Otieno Outa v Jared Odoyo Okeyo & 3 others [2017] eKLR, this Court was ordinarily Page 2 of 6

page 2 of 10

functus officio. Time ran from the Judgment of 23 rd June 2023. Page 3 of 6

page 3 of 10

7. The power to extend time under Rule 4 of the Court of Appeal Rules, 2022 is a matter of judicial discretion. As settled in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others [2014] eKLR, extension of time is an equitable remedy, not a right. The criteria for exercising this discretion include: the length of delay; the reason for the delay; whether the intended appeal is arguable; the degree of prejudice to the Respondent; and the need for finality in litigation. 8. Time began running on 23rd June 2023. The application was filed on 24th November 2025. The delay is therefore approximately 28 months (over 850 days), which is inordinate by any standard. 9. The Applicant’s explanation for this staggering delay is a bare assertion of "communication breakdown" with his previous Counsel. He provides no documentary corroboration, no name of the previous counsel, no demand letters, no formal change of advocates, and no complaint to any professional body. More critically, this exact excuse was considered and rejected by this Court in the Ruling of 24th October 2025. The Court found that the Applicant had taken over four years to inquire about the status of his appeal from his then counsel, characterizing this as failing the standard of a vigilant and/or prudent litigant. The Court further termed the previous counsel's conduct "a clear case of professional misconduct" for which the Applicant has recourse elsewhere. 10. From the foregoing, I am of the view that the Applicant cannot re- package a complaint already adjudicated against him to secure a different equitable indulgence. I find that he has failed to lay a satisfactory basis for the delay as required Page 4 of 6

page 4 of 10

by the Salat (supra) principles. Page 5 of 6

page 5 of 10

11. The Applicant relies heavily on Edith Gichugu Koine v Stephen Njagi Thoithi [2014] KECA 485 (KLR). However, that reliance is entirely misplaced. First, the delay in Koine (supra) was 2 months and 8 days, more than ten times shorter than the 28 months here. Second, Koine (supra ) concerned an ordinary first appeal to this Court, not the stringent certification jurisdiction under Article 163(4)(b) of the Constitution. Third, the very case the Applicant relies on condemned the Applicant's blame-shifting in strong terms, awarding costs against her on that basis. The Applicant herein is engaging in the same blame- shifting. From the foregoing, I am not persuaded that Koine (supra) assists the Applicant in any way. 12. In exercising my discretion under Rule 4 of the Court of Appeal Rules, 2022, I must also consider whether the intended appeal is prima facie arguable. Without purporting to make any definitive findings on the substantive certification application, which is properly the exclusive domain of a three-judge bench, I have examined the authorities cited by the Applicant regarding the computation of time under Section 26 of the Limitation of Actions Act. 13. At a prima facie level, the authorities relied upon, such as Kenya Ports Authority v Timberland (K) Limited [2017] KECA 67 (KLR) and Kemboi v Macharia & 2 others [2025] KECA 1665 (KLR), appear to consistently apply the principle that time runs from the date of discovery of the fraud. It does not appear to me, at this stage, that the Applicant has demonstrated an obvious, prima facie substantive point of law that would justify excusing an inordinate delay of 28 Page 6 of 6

page 6 of 10

months. 14. Furthermore, a reading of the Applicant's supporting affidavit reveals that his primary grievance relates to this Court’s specific factual Page 7 of 6

page 7 of 10

finding that the fraud was discovered in 1995/1997, rather than in 1972, 1978, or 1987. While it is not for me to make a definitive finding on whether the intended appeal meets the certification threshold under Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013] eKLR, as that is exclusively the domain of a three-judge bench on a prima facie basis, the intended appeal does not demonstrate such overwhelming merit as to outweigh the extreme delay and prejudice in this case. 15. As evidenced by the title deed annexed to the Respondent’s Replying Affidavit, the suit property was registered in the Respondent’s name on 10 th November 2023, over two years ago. Furthermore, as deponed in the same affidavit and demonstrated by the application marked ZWM-2, the Respondent has been compelled to move the Environment and Land Court at Bungoma for enforcement of this Court's decree, and those execution proceedings are currently active before that court. Consequently, granting an extension of time would cause acute prejudice to the Respondent. Reopening this matter after 28 months of inaction only after the Applicant's review was dismissed, would destabilize a vested proprietary interest, derail active enforcement proceedings, and severely undermine the principle of finality which this Court explicitly invoked in the 24th October 2025 Ruling. 16. From the foregoing, I find that the application is procedurally defective, supported by an explanation already rejected by this Court, and based on an intended appeal that is not, at prima facie glance, so overwhelmingly meritorious Page 8 of 6

page 8 of 10

as to excuse the inordinate delay. The Applicant has failed to meet the threshold for the exercise of this Page 9 of 6

page 9 of 10

Court's discretionary, equitable jurisdiction to extend time. The balance of convenience tilts heavily in favor of the Respondent. 17. Accordingly, the Notice of Motion dated 24th November 2025 is hereby dismissed with costs to the Respondent. It is emphasized that this ruling relates solely to the application for extension of time. Dated and delivered at Kakamega this 17th day of July, 2026. R. NGETICH ……………………… . JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 10 of 6

page 10 of 10