Madhwani v Burton (Application E030 of 2025) [2025] KESC 77 (KLR) (11 December 2025) (Ruling)

Madhwani v Burton (Application E030 of 2025) [2025] KESC 77 (KLR) (11 December 2025) (Ruling) Neutral citation: [2025] KESC 77 (KLR) Republic of Kenya In the Supreme Court of Kenya Application E030 of 2025 MK Koome, CJ & P, PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola & W Ouko, SCJJ December 11, 2025 Between Babubhai Bhangwanji Amba Madhwani Applicant and Maria Burton Respondent (Being an application for extension of time and leave to file an application for review of the Court of Appeal Ruling in Nairobi Civil Application No. 181 of 2020 delivered on 17th April 2025, dismissing the applicant’s application for certification and leave to appeal to the Supreme Court on grounds of general public importance under Article 163(4)(b) of the Constitution) An applicant seeking an extension of time to file an intended appeal had to support the reason for the delay in filing the appeal with evidence _The Supreme Court dismissed an application for extension of time, within which to file a review against a Court of Appeal decision declining to certification of an intended appeal as one raising matters of general public importance. The Supreme Court held that there was no evidence to support the applicant’s explanation for the delay._ Reported by Beryl Ikamari **_Civil Practice and Procedure_** _– time within which to file an appeal- extension of time - principles applicable to a determination at the Supreme Court with respect to extension of time - extension of time within which to file a review against a Court of Appeal decision declining to certification of an intended appeal as one raising matters of general public importance - where the applicant provided explanations without supporting them with evidence - whether the Supreme Court would allow for the extension of time - Supreme Court Rules 2020, rule 33(2)._ Brief facts On April 17, 2025, the Court of Appeal made a ruling in which it dismissed the applicant's application for certification of an intended Supreme Court appeal as one raising matters of general public importance. The applicant, on October 1, 2025, sought orders for the extension of time and leave to file an application for review and setting aside of the Court of Appeal's ruling. The delay was explained to have been occasioned by a failure of the applicant's former advocates to notify the applicant about the Court of Appeal's ruling. Further, the applicant explained that upon discovering the lapse, he moved with haste and instructed his current advocates move the court for an extension of time. The applicant also explained the delay as one arising from factors such as his age and deteriorating health. Issues 1. What were the principles applicable to the extension of time within which to file an appeal at the Supreme Court? 2. Whether an applicant had offered a reasonable explanation for a delay in filing an appeal, where he had attributed it to his age, his deteriorating health and his advocate's failure to inform him of the ruling against which he sought an appeal, without providing evidence of the explanations offered. Held 1. In the case of _Salat v Independent Electoral and Boundaries Commission & 7 others_ [2014] KESC 12 (KLR), the Supreme Court set out the principles applicable to the extension of time and they were to the effect that: - 1. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court; 2. A party seeking extension of time had the burden of laying a basis to the satisfaction of the court; 3. Whether the court should exercise the discretion to extend time, was a consideration to be made on a case-to-case basis; 4. Whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; 5. Whether there would be any prejudice suffered by the respondents if the extension was granted; 6. Whether the application had been brought without undue delay; and 7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time. 2\. Where the Court of Appeal declined to grant certification that a matter raised issues of general public importance, an aggrieved party could apply for a review of that decision at the Supreme Court within 14 days as provided for under rule 33(2) of the Supreme Court Rules, 2020. Under that provision, the review application with respect to the Court of Appeal's decision made on April 17, 2025, ought to have been made on or before May 2, 2025. In the applicant's case, there had been a delay of almost six months.3\. The applicant attributed the delay to both an omission by his former advocates to inform him of the ruling in time and also his age and deteriorating health. The applicant did not provide proof to support his explanation for the delay.4\. Whereas mistakes of a counsel ought not to be visited on a litigant, there must be cogent and credible evidence that the applicant made some effort or acted diligently in the circumstances, by providing evidence of steps taken. It was not enough for a party to simply blame the former advocate for all manner of transgressions.5\. The delay in filing the application was inordinate and had not been satisfactorily explained. 6\. An application for enlargement of time must be determined strictly within the procedural framework, and novelty or potential significance of the intended appeal did not cure a breach of timelines. _Application dismissed._ Citations **Cases**** _Kenya_** 1. _County Executive of Kisumu v County Government of Kisumu & 8 others_ Civil Application 3 of 2016; [2017] KESC 16 (KLR) - (Followed) 2. _Gaciani & 11 others v Kimanga & another_ Application E004 of 2023; [2023] KESC 23 (KLR) - (Explained) 3. _Habo Agencies Ltd v Musingo_ Civil Appeal 124 of 2004; [2015] KECA 597 (KLR) - (Explained) 4. _Hatayan & another v Al-Heidy & 5 others_ Civil Appeal 51 of 2014; [2015] KECA 713 (KLR) - (Followed) 5. _JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae)_ Petition 11 of 2020; [2023] KESC 4 (KLR) - (Followed) 6. _MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae)_ Petition 9 of 2021; [2023] KESC 2 (KLR) - (Followed) 7. _Salat v Independent Electoral and Boundaries Commission & 7 others_ Application 16 of 2014; [2014] KESC 12 (KLR) - (Followed) 8. _Steyn v Ruscone_ Application 4 of 2012; [2013] KESC 11 (KLR) - (Explained) 9. _Waruhiu v Munene & another_ Civil Application 18 of 2020; [2021] KESC 42 (KLR) - (Followed) **Statutes** 1. Constitution of Kenya article 163(4)(b)(5) — Interpreted 2. Supreme Court Rules, 2020 (cap 9B, Sub Leg) rules 15(2) ; 33(2) — Interpreted Advocates _Kounah & Company Advocates_ for Applicant _Njeri Onyango & Company Advocates_ for Respondent Ruling Representation:Kounah & Company Advocates for the applicantNjeri Onyango & Company Advocates for the respondent 1.Upon perusing the notice of motion dated October 1, 2025 and filed on October 7, 2025, pursuant to article 163(4)(b) and (5) of the [Constitution](/akn/ke/act/2010/constitution) and rules 15(2) and 33(2) of the [Supreme Court Rules](/akn/ke/act/ln/2020/101/eng@2025-08-20) seeking extension of time and leave to file an application for review and setting aside of the ruling of the Court of Appeal (Gatembu, Tuiyott & Achode, JJ A) delivered on April 17, 2025 in Nairobi Civil Application No 181 of 2020, in which the appellate court dismissed the applicant’s application for certification of the intended appeal as one raising matters of general public importance; and seeking costs; and 2.Upon considering the applicant’s grounds on the face of the application and affidavit sworn by Babubhai Bhangwanji Amba Madhwani on October 1, 2025 together with his Further Affidavit sworn on October 29, 2025, wherein it is contended that the Court of Appeal delivered its ruling on April 17, 2025 declining to certify the intended appeal as one raising issues of general public importance; that the statutory period for applying for review before this court lapsed owing to the failure of the applicant’s former advocates to promptly notify the applicant of the said ruling; that upon discovering the lapse, the applicant moved with haste and instructed his current advocates to move this court for extension of time and leave to file the intended application for review of the Court of Appeal decision; that the delay was not deliberate but was occasioned by factors beyond the applicant’s control such as his advanced age and deteriorating health which affected the transition between the two law firms and to execute the formal consent to act; that counsel’s mistake should not be visited upon a client; that the intended appeal raises questions that are weighty and go beyond the dispute of the parties; and 3.Upon considering the applicant’s submissions dated October 1, 2025 and filed on October 7, 2025, restating the grounds set out above and in addition urging that the application meets guidelines set out in [Salat v Independent Electoral and Boundaries Commission & 7 others](/akn/ke/judgment/kesc/2014/12) [2014] KESC 12 (KLR and that the application meets the principles for grant of certification established in [Steyn v Ruscone](/akn/ke/judgment/kesc/2013/11) [2013] KESC 11 (KLR); that the intended appeal raises live contradictions in the Kenyan jurisprudence that affect thousands of cohabitation arrangements; more particularly whether resulting trusts flow strictly from contribution as established in [Twalib Hatayan & another v Said Saggar Ahmed Al-Heidy & 5 others](/akn/ke/judgment/keca/2015/713) [2015] KECA 713 (KLR); whether presumption of advancement, historically confined to marriage, can extend to cohabitation even though [JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae)](/akn/ke/judgment/kesc/2023/4) [2023] KESC 4 (KLR) affirms that contribution only governs entitlement in lawful marriages; whether joint tenancy must yield to contribution to avoid unjust enrichment and protect contributors and beneficiaries of a deceased person upon demise; and lastly whether disputes between cohabitees should be adjudicated upon as between “strangers” as established in [MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae)](/akn/ke/judgment/kesc/2023/2) [2023] KESC 2 (KLR) or under matrimonial presumptions; and 4.Having considered the respondents’ replying affidavit sworn by Maria Burton on October 15, 2025 and filed on November 13, 2025 and submissions dated and filed on even date, to the effect that the applicant has not tendered any credible documentary proof from his former advocates to substantiate the allegation that they had failed to inform him about the ruling or explain what efforts he personally made to find out about the outcome of the case; that rules of procedure are meant to be obeyed and cannot be casually set aside on the mere claim of counsel’s omission as was held in [Habo Agencies Limited Vs Wilfred Odhiambo Musingo](/akn/ke/judgment/keca/2015/597) [2015] KECA 597 (KLR); that the applicant had before the Court of Appeal also filed an application for certification to the Supreme Court out of time, giving the same explanation and the Court of Appeal indulged him despite the delay; that the applicant has neither stated nor demonstrated when he first became aware of the ruling of the Court of Appeal; that a litigant must also demonstrate diligence in the conduct of their case; that rule 33(2) of the [Supreme Court Rules](/akn/ke/act/ln/2020/101/eng@2025-08-20) provides that an application for review of certification be made within fourteen (14) days unless there is a sufficient reason; that power to extend time under rule 15(2) of the [Supreme Court Rules 2020](/akn/ke/act/ln/2020/101/eng@2025-08-20) is discretionary and the instant application falls short of the principles set out in [Salat v Independent Electoral and Boundaries Commission & 7 others](/akn/ke/judgment/kesc/2014/12) [2014] KESC 12 (KLR); that allowing this application would defeat the principle of finality of litigation and legal certainty; that the inquiry at this stage is confined solely to whether the delay has been satisfactorily explained, not the merits of the underlying dispute as argued by the applicant in their submissions; that an application for enlargement of time must be determined strictly within the procedural framework, and that novelty or potential significance of the intended appeal does not cure a breach of timelines as was held [County Executive of Kisumu v County Government of Kisumu & 8 others](/akn/ke/judgment/kesc/2017/16) [2017] KESC 16 (KLR); and 5.Cognisant of the fact that this court has already established the guiding principles for extension of time in [Salat](/akn/ke/judgment/kesc/2014/12) (_supra_), to the effect that:a.Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;b.a party seeking extension of time has the burden of laying a basis to the satisfaction of the court;c.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;d.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;e.Whether there will be any prejudice suffered by the respondents if the extension is granted;f.Whether the application has been brought without undue delay; andg.Whether in certain cases, like election petitions, public interest should be a consideration for extending time. 6.We now opine as follows:i.The Court of Appeal delivered its ruling dismissing the applicant’s notice of motion seeking certification on April 17, 2025. Pursuant to rule 33(2) of the [Supreme Court Rules 2020](/akn/ke/act/ln/2020/101/eng@2025-08-20), an aggrieved party may apply to this court for review within fourteen (14) days. Computing time from the date of the dismissal, the applicant ought to have filed his application on or before May 2, 2025.ii.But the applicant filed the instant application on the e-filing platform on October 3, 2025 under Application No E030 of 2025 and thereafter filed the physical copies on October 7, 2025, which was almost six (6) months after the statutory timeline had lapsed.iii.Applying the principles on extension of time set out in the [Salat](/akn/ke/judgment/kesc/2014/12) case (supra), we note that the applicant has attributed the delay to his erstwhile counsel for failing to inform him of the ruling of the Court of Appeal. The applicant avers that the delay was further occasioned by his advanced age and deteriorating health, but provides no proof.iv.Whereas mistakes of counsel ought not to be visited upon a litigant as we held in [Waruhiu v Munene & another](/akn/ke/judgment/kesc/2021/42) [2021] KESC 42 (KLR) and [Gaciani & 11 others v Kimanga & another](/akn/ke/judgment/kesc/2023/23) [2023] KESC 23 (KLR), there must be cogent and credible evidence that the applicant made some effort or acted diligently in the circumstances, by providing evidence of steps taken. It is not enough for a party to simply blame the former advocate for all manner of transgressions. As we held in [Karinga Gaciani](/akn/ke/judgment/kesc/2023/23) case, “courts have always emphasized that parties have a responsibility to show interest in and to follow up on their cases even when they are represented by counsel, and it does not matter whether the party is literate or not.”v.It is therefore our view that the delay in filing this application is inordinate and has not been satisfactorily explained. Furthermore, it has long been established that an application for enlargement of time must be determined strictly within the procedural framework, and that novelty or potential significance of the intended appeal does not cure a breach of timelines. 7.Consequently, and for reasons aforesaid, we make the following orders:a.The notice of motion dated October 1, 2025 and filed on October 7, 2025 is hereby dismissed.b.The applicant shall bear the cost of this application.It is so Ordered. **DATED AND DELIVERED AT NAIROBI THIS 11 TH DAY OF DECEMBER 2025.****…………………………………………………****M.K. KOOME****CHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT****……………….……………………………………****P.M. MWILU****DEPUTY CHIEF JUSTICE & VICE PRESIDENT OF THE SUPREME COURT****……………….…………………………………… …………………………………………………………..****M.K. IBRAHIM****JUSTICE OF THE SUPREME COURT****………………………………………….****S.C. WANJALA****JUSTICE OF THE SUPREME COURT****……….………………………………….……… …………………………………………………….****NJOKI NDUNGU****JUSTICE OF THE SUPREME COURT****………………………………………….****I. LENAOLA****JUSTICE OF THE SUPREME COURT****………………………………………….****W. OUKO****JUSTICE OF THE SUPREME COURT****………………………………………….** I certify that this is a true copy of the original**REGISTRAR****SUPREME COURT OF KENYA** *[JJ A]: Judges of Appeal *[KESC]: Supreme Court of Kenya *[KLR]: Kenya Law Reports *[KECA]: Court of Appeal of Kenya