https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1561

Psinen v Cherop (Civil Application E055 of 2026) [2026] KECA 1561 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1561 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Application E055 of 2026 L Ndolo, JA July 31, 2026 Between Augustin Kotoruk Psinen Applicant and Susan Cherop Respondent (An application for extension of time to file a notice of appeal and an appeal from the Ruling of the High Court of Kenya at Kapenguria (Mrima, J.) delivered on 20th September 2023inHC Succession Cause No 2 of 2015) Ruling 1.The applicant moved this Court by a notice of motion dated 18th May 2026, seeking leave to lodge a notice of appeal, and file an appeal out of time, against the ruling of Mrima, J in Kapenguria High Court Succession Cause No 2 of 2015. 2.The brief background to this application is that the applicant had taken out summons for revocation of a grant issued to the respondent on 14th January 2016 in Kapenguria HC Succession Cause No 2 of 2015. The application for revocation was heard and determined by Mrima, J in a ruling dated 20th September 2023. 3.By the ruling of the learned Judge, the respondent’s position as administrator of the estate of Lomaria Kotoruk alias Plimo Kotoruk (deceased) was upheld, by virtue of the respondent being the granddaughter of one Chepochoptorok (deceased). This decision was informed by a finding that there was a presumption of marriage between Lomaria Kotoruk alias Plimo Kotoruk (deceased) and Chepochoptorok (deceased) who was the grandmother of the respondent. 4.The court further directed that confirmation of the grant issued to the respondent on 14th January 2016, would await the outcome of ELC NO. 54 of 2016 by which the respondent had commenced a suit as the administrator of the estate of Lomaria Kotoruk alias Plimo Kotoruk (deceased) against the applicant over land parcel number West Pokot Keringet (A)/79. It is on this premise that the applicant asserts that he has an arguable appeal since the court affirmed that there existed a marriage between Lomaria Kotoruk alias Plimo Kotoruk (deceased) and Chepochoptorok (deceased). 5.The applicant brings the present application under section 3A & 3B of the Appellate Jurisdiction Act, rules 4,77,79 and 84 of the Court of Appeal Rules, Article 159(2)(d) of the Constitution and order 50 rule (6) of the Civil Procedure Rules. He seeks the following orders:a.That the firm of Omwenga & Co Advocates be granted leave to come on record for the applicant, in place of the firm of David Ingosi & Co. Advocates;b.That this Court be pleased to grant leave to the applicant to lodge a notice of appeal and file an appeal out of time, against the ruling of the High Court delivered on 20th September 2023 in Kapenguria HC Succession Cause No 2 of 2015;c.That the Court be pleased to issue an order of stay of proceedings and/or confirmation of grant in Kapenguria HC Succession Cause No 2 of 2015. 6.The application is premised on the grounds set out on the face of the application and buttressed in the supporting affidavit of the applicant, Augustine Kotoruk Psinen, all dated 18th May 2026. Similar grounds are contained in the applicant’s submissions dated 9th June 2026. 7.The applicant assigns the delay in lodging a notice of appeal and filing an appeal to omission and inaction on the part of his former advocate. He states that upon delivery of the impugned ruling on 20th September 2023, he informed his previous advocate of his intention to appeal against the ruling and personally applied for typed proceedings on 26th September 2023, for purposes of filing an appeal. He contends that he was advised by his counsel that confirmation of the grant would not proceed until final determination of ELC NO. 54 of 2016, adding that he relied on this advice believing that his interests were protected. 8.The appellant avers that following conclusion of ELC NO. 54 of 2016 on 16th June 2025, he instructed his advocate to file an appeal against the ruling and he was informed that a notice of appeal had been lodged and that counsel was in the process of filing the record of appeal, only for the applicant to discover later that a notice of appeal was lodged in ELC NO. 54 of 2016 and not in Kapenguria HC Succession Cause No 2 of 2015 as instructed. According to the applicant, it is this discovery that prompted him to file the present application. 9.This is an omnibus application seeking orders ranging from leave for an advocate to come on record, extension of time to lodge a notice of appeal and file an appeal out of time, to stay of proceedings. At the very outset, I must state that sitting as a single Judge of this Court, my jurisdiction is constrained. In particular, a plea for stay of proceedings is beyond my jurisdiction, by dint of rule 55(1) & (2) of the Court of Appeal Rules. 10.Regarding the application for leave for counsel to come on record, my view is that appeal proceedings before this Court are not to be considered as a continuation of proceedings before the lower court. Parties are therefore at liberty to change counsel when they come on appeal. This is where I will rest this issue. 11.That said, the only surviving plea is for extension of time. The applicant blames his former advocate for the delay in lodging a notice of appeal and filing an appeal. 12.The respondent opposed the application by a replying affidavit dated 3rd June 2026. The respondent’s position is that there is inordinate delay on the part of the applicant, which has not been explained. He states that the applicant has not demonstrated any follow up with his advocates nor has he shown any written request for typed proceedings as required under rule 84(2) of the Court of Appeal Rules. 13.The respondent further avers that the reason for delay advanced by the applicant, that he was awaiting the outcome of ELC NO. 54 of 2016 is inexcusable since judgement in ELC NO. 54 of 2016 was rendered on 16th June 2025 whereas the present application was filed over ten months later. The respondent asserts that no reason has been advanced for the period of delay from the date of delivery of judgement in ELC NO. 54 of 2016 to the date of filing this application. 14.The respondent submits that she and her two siblings will be prejudiced if the application is allowed and litigation re-opened, as they have implemented the ruling against which the appellant intends to appeal, by taking possession and ownership of the land known as West Pokot Keringet (A)/79. 15.I have considered the pleadings and submissions filed by the parties. The power of this Court to extent time is donated by rule 4 of the Rules of the Court which provides that:"The Court may, on such terms as may be just, by order, extend the time limited by these Rules, or by any decision of the Court or of a superior court, for doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended." 16.Extension of time is a discretionary equitable remedy which is granted on a case by case basis, upon examination of the length of delay, the reason for the delay, prejudice to the respondent and arguability of the appeal. 17.Both parties relied on the Supreme Court decision in Nicholas Kiptoo Salat vs Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR where the applicable principles in determining an application for extension of time were established as follows: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 who seeks for 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 to be suffered by the respondent if the extension is granted;f.Whether the application has been brought without undue delay; andg.Whether in certain cases, like in election petitions, public interest should be a consideration for extending time. 18.In the present application, the applicant claims to have instructed his advocate to appeal against the ruling rendered by the High Court, but the advocate failed to take action as appropriate. The applicant further claims to have personally applied for typed proceedings from the High Court. The applicant has however not adduced any evidence to show that he instructed his former advocate to proceed on appeal. If indeed the applicant had instructed his advocate to file an appeal, why would he personally visit the registry and apply for typed proceedings when he had an advocate on record? At any rate, although the applicant made payment for typed proceedings, there was no written application for these proceedings. 19.It was also not lost on the Court that whereas the applicant has attempted to explain the reason for delay from 20th September 2023 to 16th June 2025, no explanation has been proffered for the 11 months’ delay from 16th June 2025. What is more, the applicant has not demonstrated any follow up or steps taken towards appealing against the ruling of the High Court. 20.I am not persuaded by the reason advanced for the delay in this case, which in my view, is inordinate and inexcusable given the length of time taken. 21.The final factor to consider is the prejudice likely to be suffered by the respondent should the orders sought be granted. The ruling in question was rendered on 20th September 2023 over two years ago. The respondent has taken steps to implement the ruling as the grant was confirmed and the respondent has taken possession and ownership of land parcel number West Pokot Keringet (A)/79. 22.In the circumstances of this application, I find no reason to cause me to exercise discretion in the applicant’s favour. The motion dated 18th May 2026 is therefore declined with costs to the respondent. DATED AND DELIVERED AT ELDORET THIS 31ST DAY OF JULY, 2026.L.M. NDOLOJUDGE of APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR