https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1555

Cheruiyot (Suing in his own Capacity as an Administrator of the Estate of Esther Cheruiyot) & another v AIC Ainabkoi Church & 7 others (Civil Application E074 of 2026) [2026] KECA 1555 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1555 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Application E074 of 2026 MN Nduma, JA July 31, 2026 Between Samuel Cheruiyot (Suing in his own Capacity as an Administrator of the Estate of Esther Cheruiyot) 1st Appellant Abraham Kosgei Kebenei (Suing in his own Capacity and as a Beneficiary of the Estateof the Late Eshter Cheruiyot) 2nd Appellant and Aic Ainabkoi Church 1st Respondent Aic Drys Girls Secondary School 2nd Respondent Land Registrar, Uasin Gishu County 3rd Respondent National Land Commission 4th Respondent Hon. Attorney General 5th Respondent Uasin Gishu County and Adjudication & Settlement Office ……….6Th Respondent Settlement Fund Trustees 6th Respondent Settlement Fund Trustees 7th Respondent The Board of Trustees African Inland Church 8th Respondent (Being an application for extension of time to file an Appeal out of time from the decision of Eldoret ELC Court (E. Obaga, J.) delivered on 3rd March, 2022 in ELC Petition No. 22 OF 2019) Ruling 1.Before me is an omnibus Notice of Motion application dated 22nd May 2026 seeking leave to appeal out of time as well as stay of execution pending appeal. 2.Firstly, the applicants seek leave to file and serve Memorandum of Appeal and Record of Appeal out of time against the judgement delivered in Eldoret ELC Petition No. 22 of 2019 on 3rd March 2022. The applicants also pray that the Memorandum of Appeal annexed to the application be deemed as duly filed upon payment of requisite fees. Additionally, and controversially, the applicants seek stay of execution against the impugned judgement and any consequential orders pending the hearing and determination of the intended appeal. 3.The application is brought under section 3A and 3B of the Appellate Jurisdiction Act and rules 4, 41, 43 and 47 of the Court of Appeal Rules. The application is based on the grounds set out on the face of the application, restated in the supporting affidavit of Abraham Kosgei Kebenei, the 2nd applicant, both dated 22nd May 2026, and buttressed in the written submissions dated 15th July 2026. 4.The applicants depose that being aggrieved by the determination of the trial court they filed a Notice of Appeal dated 15th March 2022 on 17th March 2022. That they also made a request on 15th March 2022 for copies of certified proceedings and the judgement through their counsel on record Cheptinga & Co. Advocates. That the applicants later changed their Advocates to Maritim & Co. Advocates who subsequently filed a draft Memorandum of Appeal. The applicants therefore seek enlargement of time to file their Record of Appeal which was pending and was only recently supplied from the trial court. 5.The applicants contend that the delay was not intentional and was due to transition of Advocates and an unforeseen delay in procuring proceedings from the trial court. The applicants further contend that the intended appeal is arguable, the delay is not inordinate and the respondents will not be prejudiced if leave is granted. The applicant therefore prays for grant of leave to appeal out of time and allow determination of the appeal on its merits. 6.The applicants also aver that the respondents have since been issued with certificate of costs hence the apprehension of commencement of execution, to their detriment as the period of stay had lapsed. The applicants urge that any execution would occasion substantial and irreparable harm, rendering the intended appeal nugatory. The applicants therefore also seek prayers for stay of execution and any consequential orders pending determination of the appeal. 7.The application is un-opposed. There is no response that has been filed by the respondents despite service being done. The attached hearing notice sent on 10th July 2026 at 8:45 a.m. confirms that the parties were given directions on filing and service of their responses and submissions. The applicants have also attached proof of service by electronic mail. Attached to their pleadings are two affidavits of service dated 13th July 2026 and 15th July 2026 respectively indicating service of the application and written submissions on the respondents. 8.This Court has decried the practice of jointly seeking several prayers where the jurisdiction of this Court is variously donated. See Associated Construction Company (K) Ltd v Kyamu Construction & Engineering Ltd [2022] KECA 872(KLR) and Mpaka (Suing as the legal representative of the Estate of Gilbert Karagania Miringo) v Ikiugu [2026] KECA 338 (KLR). The present application seeks orders that are within the purview of a single judge to grant, with others requiring a full bench. Consequently, and in the interest of justice, I am inclined to only deal with issues which a single judge can address, that of extension of time. In the event that the applicant is successful, they are at liberty to apply for other orders before the correct forum. 9.I have considered the application, the supporting affidavit and its annextures, the applicants written submissions and the law. This Court is empowered by dint of Rule 4 of the Courts of Appeal Rules, 2022 with unfettered discretion to grant extension of time. Whereas the power is discretionary, the same is to be exercised judiciously. In doing so, I will rely on the principles set out by the Supreme Court in Nicholas Kiptoo Arap Korir vs. Independent Electoral and Boundaries Commission & 7 others [2014] eKLR. The Supreme Court held that;“In exercising discretion to extend time for filing an appeal, the court ought to consider extension of time not as a right of a party but as an equitable remedy only available to a deserving party, at the discretion of the court. In doing so, the court ought to consider the; period of delay, reasons for the delay and the potential prejudice to the respondent.” 10.Notably, the exact measure for period of delay is not set out in law. The parameter relied on by the Court is therefore whether the delay has been satisfactorily explained and if the reasons lay basis for exercise of discretion. 11.Having considered the application and submissions, I find that the applicant has provided plausible reasons for the delay. From the onset, the intention to appeal was demonstrated through the filing of the Notice of Appeal and the request for typed proceedings and judgement within the requisite period. The applicant only references receiving the proceedings “recently” without providing an exact timeline or attaching a certificate of delay to that effect, to guide this Court on the period. Be that as it may, the lapse appears to have been in getting the proceedings which were not within the direct control of the applicants after lodging their request, therefore it is excusable. 12.I also note that the application is not opposed and no issue has been advanced to provide a basis for a conclusion that the respondents will suffer prejudice if the application is allowed. Further to that, the applicants have enclosed a draft Memorandum of Appeal with grounds of appeal, that on the face of it do not appear frivolous. 13.Accordingly, I find that the application dated 22nd May 2026 has merit and it is hereby allowed in the following terms;a.The Memorandum of Appeal is deemed duly lodged upon payment of requisite fees.b.The Record of Appeal to be filed and served within 30 days from the date of this ruling.c.Costs of this application shall abide the outcome of the appeal. DATED AND DELIVERED AT ELDORET THIS 31ST DAY OF JULY, 2026.NDUMA NDERI………………………………JUDGE OF APPEALI certify that this is a true copy of the original.Signed DEPUTY REGISTRAR