https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1637

Kiplagat (Suing through nephew and next friend John Kibor Biwot) v Kogo & 2 others (Civil Application E085 of 2026) [2026] KECA 1637 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1637 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Application E085 of 2026 MN Nduma, JA July 31, 2026 Between Joseph Kiplagat (Suing through nephew and next friend John Kibor Biwot) Applicant and Rita Jerop Kogo 1st Respondent Land Registrar, Nandi County 2nd Respondent George Koech 3rd Respondent (Being an application for extension of time to file an appeal out of time from the ruling of the Environment and Land Court at Kapsabet (G. A. Ongondo, J.) delivered on 25th February, 2025 in ELC (OS) E007 OF 2024) Ruling 1.The Notice of Motion dated 19th June 2026 presents a double- barreled quest for two distinct orders. The applicant seeks extension of time to appeal out of time against the ruling delivered in Kapsabet ELC (OS) E007 of 2024 on 25th February 2025. Additionally, the applicant seeks orders for stay of taxation proceedings of the 3rd respondent’s Bill of Costs pending the intended appeal. 2.The application brought under section 3A and 95 of the Civil Procedure Act, Cap 21 and Article 159 of the Constitution of Kenya is predicated on the grounds on the face of the motion. Similar grounds are restated in the supporting affidavit of even date sworn by John Kibor Biwot, representative to Joseph Kiplagat, the applicant. The grounds in support are further buttressed in written submissions by the firm of Cheruiyot Kirui & Co. Advocates dated 16th July 2026. 3.It is not contested that the applicant had lodged a notice of appeal issued on 5th March 2025. The applicant has also annexed a request letter for typed proceedings dated 28th February 2025 and an undated Memorandum of Appeal. Subsequently, he states that he unsuccessfully attempted to engage the 1st respondent in mediation over outstanding issues. It is the applicant’s contention that it was during that time that the period of appeal lapsed, hence the present application. 4.The applicant submits that the delay in filing the appeal was not deliberate. He contends that he had hoped the mediation process would materialize. The applicant also ascribed the delay to the inadvertence of his Advocate. He therefore contended that the respondents would not be prejudiced should the application be allowed. 5.The 1st respondent opposed the application through a replying affidavit and written submissions, both dated 14th July 2026. She urges that the application is fundamentally defective for citing the wrong provisions of law and referring to a Tribunal. The 1st respondent also contends that the representative lacks capacity to appear on behalf of the applicant, a fact that was determined at the trial and 1st appellate court and the appellant has not yet regularized the situation. The 1st respondent also submits that the threshold for grant of extension of time has not been satisfied to warrant grant of orders under rule 4. 6.The 1st respondent also averred that litigation cannot be conducted at the convenience of a party who ignores mandatory timelines. She outlined the period of delay of over 15 months and the unsatisfactory reasons advanced. She further submitted that she did not participate or know of any mediation process. The 1st respondent reiterated that in sum, the application lacked merit and she would be prejudiced if it is allowed. She therefore prayed for its dismissal with costs. 7.The 2nd respondent did not take part in this application. 8.The application was also opposed by the 3rd respondent through replying affidavit and written submissions both dated 12th July 2026. Counsel reiterated the issues highlighted by the 1st respondent on wrong provisions of the law, locus standi, the deliberate delay and unsatisfactory reasons for delay. Counsel referenced the legal provisions under Order 32 rule 15 of the Civil Procedure Rules and Sections 26 and 27 of the Mental Health Act, Cap 248 on adjudging a person with mental illness and their representation. 9.The 3rd respondent further contended that the principles for grant of extension of time had not been satisfied and referenced the case of Gaciani & 11 others v Kimanga & Another [2023] KESC 23 (KLR) which discussed factors to consider in laying blame on the Advocate. The 3rd respondent added that the grounds for stay of execution had not been satisfied per the test in Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR). The 3rd respondent concluded that the application was incompetent, unmeritious and ought to be dismissed with costs. 10.The 1st and 3rd respondents have raised two weighty issues on locus standi of the applicant and the citing of wrong provisions of law on the face of this application. I have perused the applicant’s undated Memorandum of Appeal and note that the two issues are part of the grounds of appeal. I will therefore decline the invitation to pronounce myself at this interlocutory juncture on those two issues. 11.Having considered the application, depositions and submissions by the parties, two issues fall for determination being, whether the applicant should be granted extension of time to appeal out of time and whether an order for stay of execution should be granted on the taxation proceedings. 12.Time without number, this Court has decried the issue of omnibus applications. Rule 55 (2) of the Court of Appeal Rules, 2022 outlines the remit of a single Judge. Rule 55 (2) (b) in particular lists applications for; stay of execution, injunction or stay of further proceedings outside the ambit of a single Judge. I am therefore inclined to only address the issue of enlargement of time. 13.The grant of extension of time is anchored under Rule 4 of the Court of Appeal Rules, 2022. It gives unfettered discretion to the court to consider applications for extension of time. This position is elaborated in Fakir Mohammed v Joseph Mugambi and 2 others [2006] KECA 240 (KLR) which outlines factors to consider for grant of extension of time to include: - the period of delay, reasons for the delay, chances of the appeal succeeding if the application is granted and the degree of prejudice to the respondents if the application is granted. 14.A perusal of the material adduced indicates that the Notice of Appeal was filed on 5th March 2025. Thereafter, there was no activity until 19th June 2026 when this application was filed. In line with Rule 84(1), the appeal ought to have been instituted on or before 4th May 2025 marking a delay of approximately 13 and 1/2 months. 15.The applicant explains that the delay was due to a mediation process with the 1st respondent which did not materialize and inadvertence of his Advocate. The 1st respondent has however disputed participation in or knowledge of any mediation process. Further, the applicant has not adduced any evidence in support of his assertion including any letter for invitation or referral to mediation. Additionally, the applicant has not advanced any explanation or supported the claim of inadvertence by his Advocate. In the circumstances I conclude that the reasons for delay are neither persuasive nor satisfactory. 16.The applicant has attached an undated Memorandum of Appeal to the application that is visited by inordinate delay. Even though the appeal is arguable, the same cannot see the light of the day in view of the unconscionable delay that is not satisfactorily explained by the applicant. 17.The other factor for consideration is whether the respondents will suffer any prejudice if the application is allowed. I am inclined to agree that the respondents would be prejudiced by the inordinate delay that has not been justified. 18.In Nicholas Kiptoo Arap Korir vs. Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, the Supreme Court held that; “extension of time is not a right but an equitable remedy to a deserving party.” The period of delay has not been computed in law. However, considering the reasons relied on for the delay and the surrounding factors as discussed above, the unjustified laxity by the applicant is deliberate and inexcusable. In the circumstances, I am not persuaded that this is an instance to apply discretion in line with rule 4 of this Court’s Rules. Consequently, I find that the application lacks merit and is hereby dismissed with no order as to costs. 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