https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1595

Oyolla v Agwane & 2 others (Civil Application E185 of 2026) [2026] KECA 1595 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1595 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E185 of 2026 P Lilan, JA July 31, 2026 Between John Kenneth Ajima Oyolla Applicant and Peres Anyango Agwane 1st Respondent Red Rose Realtors Limited 2nd Respondent Gold Green Light Residence Ltd 3rd Respondent (Application for extension of time to file an application for certification and leave to appeal to the Supreme Court against the Judgment of the Court of Appeal (Kiage, J. Mohammed, W. Korir JJ.A) date 27th February 2026 in Civil Appeal No. E454 of 2024) Ruling 1.The Application dated 13th April 2026 under rules 4, and 41(3) of the Court of Appeal Rules 2022, section 3A and 3B of the Appellate Jurisdiction Act as well as Article 159 of the Constitution, seeks extension of time within which to file an application for certification to the Supreme Court and leave to appeal against the judgment delivered by this court in Civil Appeal E454 of 2024; and that costs be provided for. The Application is supported by the affidavit of even date sworn by John Kenneth Ajima Oyolla, the applicant. 2.This court (Kiage, Jamila Mohamed & Korir, JJ.A) delivered its judgment on 27th February 2026 in which it found and held that the 1st respondent, the applicant herein, did not establish the existence of a constructive trust or a resulting trust in respect of the suit property, ie LR NO. 209/14990/16 9IR NO. 90324); set aside apportionment of ownership and all consequential rectification orders and ordered; that the ownership of the suit property remained vested in the appellant who is the 1st respondent in this application; that the matter be remitted in part to the ELC solely for determination limited to monetary issues to be heard by a different judge and that each party would bear their costs. 3.The applicant being dissatisfied with the outcome and being desirous of approaching the Supreme Court for redress, ought to have filed Notice of Appeal promptly and file the application for certification and leave within 30 days but failed to do so . He claims that delay was as a result of what he describes as an inadvertent mistake attributable to his advocate on record concerning the reckoning of time. It is said that the advocate miscalculated the days from the date of instruction to file (12th March 2026) instead of from the date of the decision (27th February 2026). His apprehension is that should extension not be granted he risks great injustice as he will be left with no redress. He contends that the delay in any event that the delay was very short - only 10 days - therefore not inordinate; and urges that the intended appeal to Supreme Court meets the requisite threshold, it is meritorious and hence the instant application is well founded and should therefore be allowed. 4.In opposing the application, Peris Anyango Agwane, the 1st respondent in a replying affidavit dated 20th April 2026, states that the application is devoid of merit as no plausible explanation has been offered for the delay; that misinterpretation and/or ignorance of the law does not constitute reasonable or sufficient explanation for delay; that the issues intended to be escalated to the Supreme Court in the proposed appeal do not constitute matters of general public importance and do not transcend the case and circumstances of the parties herein. 5.The 3rd respondent also opposes the application and similarly filed replying affidavit sworn by its director, one Saban Yilmazturk. In summary so far as can be gleaned from the said replying affidavit, the 3rd respondent is of the view that the sole reason advanced by the applicant for the delay in filing the application for certification and leave to appeal was inadequate and did not amount to a justifiable reason; that the miscalculation of dates is inexcusable indolence; that the basis of the intended appeal does not disclose any matter of general public importance. 6.The applicant filed written submissions dated 14th May 2026 which in summary argues that this court has the discretion to extend time and relies on the case of Fakir Mohammed v Jospeh Mugambi & 2 Others [2025] eKLR and Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR; that the reason for the delay was attributed to an inadvertent mistake on part of counsel in computing time and that mistake of counsel must not be visited on the innocent client and relied on the case of George Kagima Kariuki & 2 Others v George M. Gichimu & 2 others [2014] KECA 566(KLR); that the length of delay was approximately 10 days and relied on Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 701(KLR); and lastly with respect to the instant application that there would be no prejudice suffered should the orders sought be granted. 7.On the other hand, the 1st respondent filed written submissions dated 3rd June 2026 and argued in summary that prayer 3 of the application was incapable of being granted; that the explanation that had been advanced for the delay was the mistake of counsel in computing time and submitted that the said explanation was neither plausible nor reasonable relying on Bains Construction Co. Ltd v John Mzare Ogowe [2011], Habo Agencies Limited v Wilfred Odhaimbo Musingo [2015]eKLR and Madhwani v Burton [2025] KESC 77 (KLR); that this courts discretion though unfettered must be exercised judicially, not on a whim, sympathy or caprice and relied on Paul Wanjohi Mathenge v Duncan Gichane Mathenge [2013] eKLR as well as the Salat Case (supra). 8.The 3rd respondent also fled written submissions dated 4th June 2026 and argued in summary that that applicant had failed to meet the principles to be considered in moving court to exercise its discretion; that there was no justifiable reason for the delay; that the reason advanced on miscalculation of days was not sufficient reason for extension of time and relied on the case of Daphne Parry v Murray Alexander Carson [1963] EA cited in Dilpack Kenya Limited v William Muthama Kitony [2018] eKLR. 9.Having considered the grounds set out on the face of the motion before me, together with affidavits on record as well as the extensive submissions in the context of the applicable law and previous decisions cited by the parties, I now turn to the sole question which is at the core of the instant application, ie- whether the Applicant has met the prerequisites for granting relief under Rule 4 of the Court of Appeal Rules. 10.Rule 4 of the Court of Appeal Rules, 2022, gives the court unfettered discretion in deciding whether to grant an applicant extension of time to do a particular prescribed action. Although under the said rule, this Court has unfettered discretion on whether to extend time or not, that discretion must be exercised judiciously as was set out in Leo Sila Mutiso vs Rose Wangari Mwangi - Civil Application No. Nai 255/97 (unreported), which pointed out that this discretion, however, must be exercised judiciously and upon reason, rather than arbitrarily, capriciously on a whim or sentiment. [See Julius Kamau Kithaka vs Waruguru Kithaki & 2 Others [2013] eKLR] 11.In Imperial Bank (IR) & Anor vs Alnashir Popat and Others [2018] eKLR M’Inoti, J. had this to say concerning Rule 4:“A look at legislative history of Rule 4 will show that before 1985 the rule required that an applicant to show ‘sufficient reason’ why discretion should be exercised in his favor. After an amendment in 1985 that ‘sufficient stricture’ was removed, and the court was henceforth allowed to extend time on such terms that it deemed just. As subsequent decisions show, the amendment did not mean that the court will extend time merely on the asking. The party seeking extension of time must establish basis upon which court should exercise its discretion in its favor.” 12.Discretion also depends on circumstances of each case as was discussed in Mongira & Another vs Makori & Another [2005] eKLR. The Supreme Court has settled principles to guide in exercise of discretion to extend time. The case of Nicholas Kiptoo Korir Arap Salat vs IEBC [2014] eKLR sets down these principles as follows: -“i.Extension of time is not a right to a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.ii.A party who seeks extension of time has the burden of laying basis to the satisfaction of the court.iii.Whether the court should exercise its discretion to extend time is a consideration to be made on a case-by-case basis.iv.Where there is reasonable reason for the delay, the delay should be explained to the satisfaction of the court.v.Whether there will be any prejudice suffered by the Respondent if extension is granted.vi.Whether the application has been brought without undue delay.vii.Whether in certain cases public interest should be a consideration for extension of time.One other consideration included by the learned Judge in the case of Julius Kamau Kitheka (supra) is whether prima facie the intended Appeal/Appeal has chances of success or is a mere frivolity. 13.The Applicant has in the supporting affidavit, stated the reason for the delay in filing the application for certification and leave to appeal to the Supreme Court , as his advocate’s inadvertent error and/or mistake in calculation of time within which to file said application. It is trite law that the mistake and/or omission of counsel ought not to be visited on the client. This court in various of its decisions like in the case of Catherine Njoguini Kenya & 2 Others vs Commercial Bank of Africa - Civil Appeal No. Nai 366/09 has declined to visit wrongs committed by advocates on innocent clients where it has been sufficiently demonstrated that clients were not to blame for such default. 14.In this court’s view, it would be unfair and unjust to pin responsibility of noncompliance on the client and withhold the exercise of discretion in the Applicant’s favor, where there is evidence that the mistake was by his advocate on record. As a matter of justice, the Applicant shall have the benefit of doubt. 15.The 1st and 3rd Respondent’s main issue herein is that the applicant’s delay is unreasonable, not satisfactorily explained and is inordinate. It will be noted in this matter that the delay is just but by 10 days. In the case of Civ App 55/2020 Vishva Stone Suppliers Co. Ltd vs RSR Stone [2006] Ltd Nambuye J, found the delay of 1year two months 7 days from date of decision and 3months and 14 days from date of issuance of certificate of delay, excusable as compared to the delay in the case of George Mwende Muthoni vs Mama Day Nursery & Primary School, Nyeri CA 4/2014 where the court denied extension on the ground that the Applicant had failed to sufficiently explain the delay of 20 months. Considering the above I would find the delay sufficiently explained, not inordinate and excusable. 16.This court in the case of Patricia Cherotich Sawe vs IEBC & 4 Others [2015] e KLR has held; -“i.Rules of procedure are the handmaidens of Justice,ii.A court of law should not allow prescriptions of procedure and form to trump the primary object of dispensing substantive justice to the parties…iii.The exercise of jurisdiction under Article 159 of the Constitution is unfettered especially where procedural technicalities pose an impediment to the administration of justice.”I defer to Nambuye J in the Vishva Stone Case (supra) who took the mandate and followed the holding in the Patricia Cherotich Sawe case and allowed the application for extension. 17.Respondents have also raised the issue of the intended Appeal having no chance of success. On the issue of the Appeal/intended Appeal having chances of success, it is not the role of a single judge to determine the merits of the Appeal. This Court has held in the case of Athuman Nasura Juma vs Afwa Mohammed Ramadhan - CA227/15 “…this court has been careful to ensure that whether the intended Appeal has merit or not is not an issue to be determined with finality by a single Judge.” In the case of Richard Nchapi Leiyagu vs IEBC & 2 Others as quoted by Nambuye J, in Civ App 55/2020 Vishva Stone Suppliers Co. Ltd vs RSR Stone [2006] Ltd the learned Judge in allowing the application for extension of time stated, the right to be heard is not only constitutionally entrenched but is a corner stone of the Rule of Law; The right to be heard is a valid right; The right of a party to be heard before an adverse action or decision is taken against such a party is so basic that a decision which is arrived at in violation of it will be nullified even if the same decision would have been reached had the party been heard, because the violation is considered a breach of Natural Justice. 18.Taking the above into consideration, it is this court’s opinion that the applicant has met and satisfied the principles set out for this court to exercise its discretion in his favor and grant the extension, and further, that this is a case suitable for this court to exercise of its discretion. 19.I would therefore allow the application dated 13th April 2026 on the following terms:i.That the application for certification and leave to appeal to the Supreme Court dated 8th April 2026 and filed on 9th April 2026 is deemed to be filed in time and is properly on record.ii.Costs shall be in the cause. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY 2026P. LILAN………………………JUDGE OF APPEALI certify that this is a true copy of the original SignedDEPUTY REGISTRAR