https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1116
The application was not properly before the Court because the relief sought was a reference from a single judge decision, which must be pursued before a full court under the applicable rules; a single judge has no jurisdiction to determine such a reference or sit on appeal against a fellow single judge's decision.
Source-derived case information.
- Citation
- [2026] KECA 1116 (KLR)
- Parties
- 1st Applicant: James Nzioka; 2nd Applicant: Musembi Nzioka; 3rd Applicant: Joseph Katwiwa Nzioka; 4th Applicant: Maurice Kioko Nzioka; Respondent: Hillary Ngumbau Nzioka; Interested Party: Magdalene Wanza Kioko
- Court
- Court of Appeal
- Jurisdiction
- Kenya
- Case Number
- Civil Application E525 of 2023
- Procedural Posture
- Civil Application / Application for Extension of Time to Lodge a Reference Out of Time
- Outcome
- Application not entertained; file returned to the registry for pursuit of the proper reference procedure.
- Judges
- ["S ole Kantai"]
- Legal Topics
- Extension of Time, Reference Against Single Judge Decision, Court of Appeal Procedure, Jurisdiction of the Court of Appeal, Compliance With Procedural Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Nzioka
1st Applicant
Musembi Nzioka
2nd Applicant
Joseph Katwiwa Nzioka
3rd Applicant
Maurice Kioko Nzioka
4th Applicant
Hillary Ngumbau Nzioka
Respondent
Magdalene Wanza Kioko
Interested Party
Procedural Posture
Civil Application / Application for Extension of Time to Lodge a Reference Out of Time
Legal Issues
- 1 Whether the application for extension of time to lodge a reference was properly before the Court
- 2 Whether a single judge could entertain a reference application
- 3 Whether the applicants had complied with the procedure under the Court of Appeal Rules
Ratio Decidendi
The application was not properly before the Court because the relief sought was a reference from a single judge decision, which must be pursued before a full court under the applicable rules; a single judge has no jurisdiction to determine such a reference or sit on appeal against a fellow single judge's decision.
Court Disposition
Application not entertained; file returned to the registry for pursuit of the proper reference procedure.
Orders
- File to be returned to the registry.
- Applicants to pursue their avenue through a reference.
Full Case Text
Judgment text and source record
1 paragraphs
Nzioka & 3 others v Nzioka & another (Civil Application E525 of 2023) [2026] KECA 1116 (KLR) (12 June 2026) (Order) Neutral citation: [2026] KECA 1116 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E525 of 2023 S ole Kantai, JA June 12, 2026 Between James Nzioka 1st Applicant Musembi Nzioka 2nd Applicant Joseph katwiwa nzioka 3rd Applicant Maurice Kioko Nzioka 4th Applicant and Hillary Ngumbau Nzioka Respondent and Magdalene Wanza Kioko Interested Party (Being an application for extension of time to lodge a reference out of time against the Judgment of the High Court at Machakos (Rayola, J.) delivered on 21st September, 2023 in H.C. Succ. Cause No. 286 of 2007) Order 1.There is some confusion in the way that the applicants are trying to approach the Court. This has led to numerous applications which, in my view, breach the procedure in the Court of Appeal Rules. 2.My learned sister, Achode, JA. was asked in an application brought under rule 4 of our rules to extend time for the applicants, James Nzioka, Musembi Nzioka, Joseph Katwiwa Nziokа and Maurice Kioko Nzioka to file an appeal out of time. In a ruling delivered on 24th May, 2024 the Judge found that the application lacked merit. She dismissed it with costs to the respondent. 3.I have seen a notice of motion brought under sections 3A and 3B of the Appellate Jurisdiction Act, Chapter 9 Laws of Kenya, Rules 4, 49 and 57(1)(b) of the Court of Appeal Rules, 2022 where the main prayer is:…That this Honourable Court may be pleased to extend time for lodging a reference against the ruling and orders made by Honourable Lady JusticeL. Achode on 24h May 2024.” 4.There are no reasons given why I should extend time for a reference and I therefore doubt that the application is properly before me. 5.That application for a reference is within the province of a full court, not a single judge. I cannot see any evidence that that application has been heard at all. 6.The procedure available to a party where application is refused by a single Judge is set out in rule 57 of our rules. The applicants ought to abide by it as I cannot purport to sit on appeal against the decision of my learned sister. 7.I think that the proper thing to do here is to return the file to the registry for the applicants to pursue their avenue through a reference. I so order. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE, 2026S. ole KANTAI……………………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR