https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1136

Bett (Suing as the Legal Representative of the Estate of the Late ESTHER Chepkirui Ngeno) v Langat (Civil Appeal (Application) E079 of 2022) [2026] KECA 1136 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1136 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Appeal (Application) E079 of 2022 JM Mativo, PM Gachoka & MB Kairaria, JJA June 12, 2026 Between John Cheruiyot Bett [Suing as the Legal Representative of the Estate of the Late ESTHER Chepkirui Ngeno] Applicant and Wilson Kipyegon Langat Respondent (An application seeking reinstatement of an appeal from the judgment and orders of the High Court of Kenya at Kericho (A. Ongeri, J.) delivered on 7th October 2022 in Succession Cause No. 259 of 1999) Ruling 1.Before us is an application dated 1st December, 2025 filed by John Cheruiyot Bett [suing as the legal representative of the late Esther Chepkirui Ngeno] [the applicant] principally seeking the re-instatement of the appeal against the judgement and decree delivered by A. N Ongeri J on 7th October, 2022 Kericho High Court Succession Cause No. 259 of 1999, in the matter of the Estate of the late Kimagut Arap Ngeno [deceased] John Cheruiyot Bett [legal representative of the late Esther Chepkurui Ngeno v Wilson Kipyegon Langat [Legal representative of the late Esther Ngeno Chelelgo]. Additionally, applicant also prays that Court be pleased to grant any such further orders as it may deem fit and just in the circumstances and costs of the application. 2.The application is expressed to be brought under Sections 3, 3A and 3B of the Appellate jurisdiction Act CAP 9 Laws of Kenya, Rules 44 and 105[1] & [3] of the Court of Appeal Rules 2022 and Article 48 and 159 of the Constitution of Kenya 2010 and is premised on the grounds set out in the body of the notice of motion supported by the affidavit of the applicant sworn on 1st December, 2025. 3.The background facts and grounds of the instant application as gleaned from the notice of motion and the affidavit in support thereof can be briefly stated. The parties were involved in a succession dispute before the High Court in Kericho Succession Cause No. 259 of 1999 as petitioner and objector respectively; Judgement was delivered in that cause by A. Ongeri J on 7th October, 2022; the applicant was aggrieved by that decision and determined to appeal to this Court; he filed a notice of appeal dated 13th October, 2022 through J. K Kirui advocates and requested for certified proceedings before the trial court and instituted Civil Appeal No. E079 of 2022 but inadvertently failed to serve the notice of appeal within the time prescribed by the Rules of the Court; the respondent applied to strike out the notice of appeal by an application dated 7th November, 2022 that application came up for hearing on 3rd November, 2025 and was allowed the previous counsel on record for the applicant being absent. 4.The applicant contends that; his previous counsel failed to diligently prosecute the appeal and the application; he has an arguable defence [sic appeal] and he should be allowed to prosecute the appeal this Court has power and discretion under Rule 4 of the Court of Appeal Rules to extend time within which any act can be done in order that the ends of justice may be met; failure to effect service of the notice of appeal was purely in advertent and mistake of his counsel which should not be visited upon an innocent client. 5.The applicant further argues that man is prone to error; is susceptible to human frailties; that mistakes are bound to occur from time to time and a litigant should not be locked away from the seat of justice and condemned unheard on account of such mistakes. He implores that it is imperative that this Court should not inhibit itself from hearing the applicant’s case on the merits, by paying undue regard to procedural technicalities. Lastly, the applicant pleaded that it is in the interest of justice that the application be heard on priority basis because he and his family stand to be disposed of the only property that they have. 6.The application is opposed on the grounds set out in the replying affidavit of the respondent sworn on 30th January, 2026 the essentials of which can be summarized as follows: The application is devoid of merit; the notice of appeal dated 13th October, 2022 was struck out for the reason that it had not been served within the timelines prescribed by the Rules; no application was made to extend time; the applicant has not sought extension of time in the instant application, what is sought in the application is reinstatement of the appeal; no appeal or record of appeal was filed pursuant to the notice that struck out notice of appeal; what followed the filing of the notice of appeal was an application dated 4th November, 2022 for stay of execution under Rule 5[2] [b] of the Court of Appeal Rules 2022; that application was given number Civil Appeal Application No. E079 of 2022; that application came up in Court on 30th May, 2023 before [F. Sichale, F. A Ochieng and Korir JJ.A] who granted an order for maintenance of status quo in respect of the property pending the hearing and determination of Civil Application No. E079 of 2022. 7.Armed with the aforesaid order, the applicant moved to the Lands Office and registered the order against title Kericho/Kipchimchim/1 while the respondent applied to strike out the notice of appeal by the application dated 7th November, 2022 which was allowed in the presence of counsel for the applicant. The respondent further contends that; the applicant has not taken any action towards the filing of the appeal after registering the order for maintenance of status quo and continues to enjoy the subject land to the exclusion of the respondent; the application even if allowed will serve no useful purpose absent a request for extension of time to file and serve a fresh notice of appeal following the striking out of the previous notice. 8.Lastly, the Respondent contended that the applicant is playing delaying tactics, that it is not for this Court to interrogate the applicant’s complaint that his case was not properly prosecuted by his previous counsel and it would be prejudicial to the respondent if the applicant continues using the land to the exclusion of other beneficiaries. 9.Based on those submissions, the respondent urged us to find that the applicant has failed to demonstrate any basis upon which the Court can exercise its discretion in his favor under Rule 4 of the Court of Appeal Rules. We will revisit the relevance of the reference to that rule in the context of t an application for reinstatement or restoration of a dismissed appeal later in this ruling. In conclusion, the respondent submitted that the application is devoid of merits and ought to be dismissed with costs. 10.We heard the application on 11th March, 2026. Learned counsel Mr. Langat appeared for the applicant and urged us to allow the application while Learned Counsel Mr. Okok appeared for the respondent and urged us to dismiss the application with costs. 11.We have carefully considered the rival contentions of the parties in support and opposition to the application. The question that we are called upon to determine is whether or not the applicant’s application dated 1st December, 2025 is merited. 12.As earlier stated, the applicant’s principal prayer is for re- instatement of an appeal under Rule 105 of this Court Rules but there was hardly any reference to that rule in the filings and the arguments presented before Court. Instead, references were made to Rule 4 of this Court’s rules in the parties’ filings before Court. For instance, the applicant’s counsel states at par. 7 in the affidavit support of urgency:“That I am aware that under Rule 4 of the Court of Appeal Rules 2022 this Honourable Court has the power and discretion to reinstate the appeal in order that the ends of justice be met.’’ 13.The applicant’s counsel is quite mistaken in making that rather bold assertion. Rule 4 of the rules of this Court does not deal with reinstatement of appeals at all. Instead, it grants this Court power to extend time limited by the rules of the Court or by an order of the Court or the Superior Court for doing any act authorized by the Rules on such terms as are just. 14.The respondent on his part and probably taking the cue from the applicant states at par. 14 in his replying affidavit:“That therefore I have been advised by my advocates on record, which advice I very believe to be true that the applicant has failed to demonstrate any basis for upon which this Honourable Court can exercise its discretion in his favor under Rule 4 of its Rules and the present application is therefore devoid of merits and ought to be dismissed.’’ 15.The respondent’s Counsel is also mistaken in giving that advise based on Rule 4. The application is for dismissal for being devoid of merits but for different reasons adverted to later in this ruling. The reason is not related to failure to demonstrate any basis upon which the Court can exercise its discretion under Rule 4 as contended by the respondent. The prerequisites under that Rule 4 are quite irrelevant when the Court is considering an application for reinstatement of an appeal dismissed or allowed for non attendance of any of the parties to the appeal. 16.The relevant rule for purposes of an application for reinstatement or restoration of a dismissed appeal is the proviso to Rule 105[1] of the Court of Appeal Rules 2022. The rule deals with appearances at the hearing of appeals and the procedure on non-appearance. For clarity and context we find it necessary to quote Rule 105[1] reads:“If on the day fixed for hearing of an appeal, the appellant does not appear, the appeal may be dismissed and any cross-appeal may proceed, unless the Court deems fit to adjourn the hearing and, in such instance may order the appellant to pay Court adjournment fees and costs to the other parties present:Provided that where an appeal has been so dismissed or any cross appeal so heard has been allowed, the appellant may apply to the Court to restore the appeal for hearing or to re-hear the cross -appeal, if he or she can show that he or she was prevented by any sufficient cause from appearing when the appeal was called for hearing.” 17.In our assessment and from a plain reading of Rule 105[1] and the proviso thereto, what an applicant needs to do in order to succeed in his or her prayer for reinstatement of a dismissed appeal is to satisfy the Court seized of the application for restoration of the following matters:a.he /she had an appeal before court;b.that appeal came up in Court on a day fixed for hearing when he/she did not appear;c.the appeal was dismissed on account of his/her non- appearance;d.he /she was prevented by any sufficient cause from appearing when the appealing was called out for hearing. 18.Additionally, by dint of Rule 105[3] he/she made the application for restoration of the dismissed appeal within thirty days after the decision of the Court or within thirty days after his or her first hearing of the decision in case of a party who should have been served with a hearing notice but was not so served. 19.On the question of whether the applicant had an appeal, the applicant asserted that he instituted Civil Appeal No. E079 of 2022 against the decision of A. Ongeri J following lodging of his notice of appeal and requesting for typed proceedings but has not tendered any evidence by way of a memorandum of appeal and record of appeal to show that he filed an appeal. Those are the documents that an appellant is expected to lodge in the appropriate registry for purposes of instituting an appeal under Rule 84. 20.The respondent on his part has denied that the applicant instituted any appeal asserting that all the applicant did following the lodging of the Notice of Appeal was to lodge the application for stay of execution dated 4th November, 2022 which was assigned the No. E079 of 2022. That application came up before a bench of this Court on 30th May, 2023 which granted him an order for maintenance of status quo pending the hearing of the application and the applicant registered that order against the title at the Lands Office in Kericho as evidenced by the copy of official search Exhibit WKL-3. Thereafter, the applicant did nothing to either prosecute the application stay or file the record of appeal while the respondent moved the Court to strike out the notice of appeal upon which the application for stay was founded. 21.From our own reading of the affidavit in support of the application and the replying affidavit we have ascertained that what the applicant filed and is the subject of these proceedings is Civil Application No. E079 of 2022. It is indeed not an appeal but an application for stay of execution which fell by the wayside once the notice of appeal upon which it was founded was struck out. In light of this, we are satisfied that the applicant did not have an appeal in respect of which we could possibly issue an order for restoration under Rule 105[1] of the Court of Appeal Rules. Besides, it is clear to us that no appeal was dismissed on account of non-appearance on the part of the applicant. What the affidavit evidence tendered by both the applicant and the respondent demonstrate is that the Court struck out the applicant’s notice of appeal dated 13th October, 2022 for failure to serve the said notice within the timelines prescribed under Rule 79 of the Court of Appeal Rules, following an application by the respondent in the instant application. In those circumstances, the applicant’s remedy was not an application for reinstatement of an appeal but rather an application for extension of time within which to lodge and serve a fresh notice of appeal. 22.We have said enough to show that the application before us is devoid of any merits, and is accordingly dismissed with costs to the respondent. DATED AND DELIVERED AT NAKURU THIS 12TH DAY OF JUNE 2026.J. MATIVO......................................JUDGE OF APPEALM. GACHOKA C. Arb, FCIArb.......................................JUDGE OF APPEAL MURUNGI B. KAIRARIA......................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR