https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1447

Kanda & 7 others v Chemor & 10 others (Civil Application E050 of 2026) [2026] KECA 1447 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KECA 1447 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Application E050 of 2026 MN Nduma, JA July 17, 2026 Between Michael Kosgei Kanda 1st Applicant Evans Kiprop Kanda 2nd Applicant Jonathan Yator Kanda 3rd Applicant Elijah Kwambai Kanda 4th Applicant Abrahim Ngetich Kanda 5th Applicant David Kanda 6th Applicant Peter Kerialong 7th Applicant Andrew Bor 8th Applicant and Joseph Kipkoech Chemor 1st Respondent Joseph Kipruto Rotich (As legal representative of the Estate Of The Late Rotich Kwambai Kandie) 2nd Respondent The Land Registrar Elgeyo Marakwet County 3rd Respondent The Attorney General 4th Respondent Joseph Kipruto Rotich 5th Respondent Pentina Kangongo Rotich 6th Respondent Susan Jepkoech Rotich 7th Respondent Isaac Kimeli Chebichi 8th Respondent Henry Kiprop 9th Respondent Josephat Kipsoy Sowe 10th Respondent Christopher Kangongo Kirui 11th Respondent (Being an application for extension of time to file an Appeal out of time from the judgment of Environment and Land Court at Eldoret (E. M. Washe, J.) delivered on 25th November, 2025 in Page 3 of 8 ELC (OS) No. E185 of 2016) Ruling 1.The applicants moved this Court by a Motion dated 5th May 2026 seeking leave to appeal out of time against the decision made in Eldoret ELC (OS) No. 185 of 2016 on 25th November 2025. The applicants have also sought directions that the notice of appeal be deemed as properly filed upon extension of time. 2.The application is brought under section 4 of the Appellate Jurisdiction Act and rules 41 and 49 of the Court of Appeal Rules 2022. The grounds are set out on the face of the application and further buttressed in the supporting affidavit of David Kiplagat Kanda, the 6th Applicant. 3.The applicants’ case is that the ELC court erroneously and without giving the applicants a hearing issued eviction orders which determined the merits of the case. That they only became aware of adverse orders in the Eldoret ELC (OS) No. 185 of 2016 on 10th February 2026 when the respondents counsel was addressing court in Iten ELC No.11 of 2025. The applicants point out that they had withdrawn the trial suit by consent, however they later learnt of the adverse orders which effectively were incorporated in the consent order of withdrawal of the suit without being heard on the matter. The applicants further depose that while they sought extension of time in Eldoret Court of Appeal, Civil Application No. E031 of 2026 which was granted, there was an erroneous omission in that the 2nd respondent despite being an administrator of the estate of the deceased, was left out in the application. Additionally, land parcel No. 274 which is also in contention was also left out. 4.The applicant contends that they have an arguable appeal and the delay in filing the appeal was neither deliberate not inordinate but was solely occasioned by lack of knowledge of the decision by the trial court. Additionally, the applicant asserts that no prejudice will be occasioned to the respondents if the orders sought are granted. The applicants reiterated these grounds in the written submissions dated 24th June 2026. 5.The respondents opposed the application through a notice of preliminary objection dated 26th June 2026, a replying affidavit by Joseph Kipruto Rotich, the 11th respondent of the even date, and written submissions dated 24th June 2026. 6.The respondents argue that the applicants in an application dated 19th Mach 2026 sought extension of time to file a Notice of Appeal out of time against the same decision delivered on 25th November 2025 and the application was granted on 30th April 2026 wherefor the applicants filed a Notice of Appeal dated 5th May 2026. The respondents therefore state that this matter is res judicata and the court functus officio since the applicants seek reliefs that have already been granted. The respondents rely on the Supreme Court decision in John Florence Maritime Services Limited & Another v Cabinet secretary for Transport and Infrastructure & 3 Others [2021] eKLR where the court held that the doctrine of res judicata bars not only matters that were actually determined but also matters that ought properly to have been raised and determined in earlier proceedings. The court emphasized that public policy demands that litigation must come to an end. That the applicants have not challenged nor sought review of the orders issued on 30th April 2026.Those orders are still alive and valid and unless set aside this court is functus officio on the issue of extension of time to file the intended appeal. 7.The respondents further contend that the applicants have not met the threshold established for grant of extension of time in any event. It is the respondents’ case that the delay of five (5) months from the date of the impugned consent order of withdrawal of the suit is inordinate and the delay has not been satisfactorily explained. That furthermore, the applicants have not demonstrated the intended appeal is arguable having not been denied opportunity to ventilate their adverse possession case before the trial court. 8.Additionally, the respondents depose that they stand to suffer prejudice because they have been excluded partially and violently by the applicants from the land in dispute, since the infamous post- election violence. 9.I have considered the application, affidavit in support, the replying affidavit and the rival submissions filed by the parties. The issues for determination are: -a.whether the matter is res judicata and the court functus officiob.whether the applicants have satisfied the criteria for grant of leave to file their appeal out of time. 10.On the first issue, the Court finds that the applicants obtained leave to file a Notice of Appeal out of time by the Ruling and Orders of this Court on 30th April 2026 in Eldoret Court of Appeal, Civil Application No E031 of 2026. The subject matter of that application is the same impugned consent order of withdrawal of the suit the subject of this application and the parties in that application are the same as in this one. This matter is therefore res judicata and the Court functus officio within the meaning described by the Supreme Court in John Florence Maritime Services Limited & Another v Cabinet secretary for Transport and Infrastructure & 3 Others [2021] eKLR. The applicants filed the notice of appeal dated 5th May 2026 in this matter and all that is remaining is to file the record of appeal and prosecute the same. Any amendments desired by the applicants ought to be in the appeal itself and not to seek leave afresh. This Court therefore lacks jurisdiction to grant extension of time to file an appeal twice by the same parties in the same matter. 11.On the second issue, and for completion the grant of extension of time is a discretion of the court exercised judiciously under Rule 4 of the Courts of Appeal Rules, 2022. As was stated in the case of Leo Sila Mutiso v Rose Wangari Mwangi [1999] 2 EA 231, the guiding principles in exercise of that discretion include the length of delay, the reason for the delay, chances of success of intended appeal, and the degree of prejudice to the respondent.This position is restated in Paul Wanjohi Mathenge vs. Duncan Gichane Mathenge [2013] KECA 199 (KLR). 12.Similarly, the Supreme Court in Nicholas Kiptoo Arap Korir vs. Independent Electoral and Boundaries Commission & 7 others [2014] eKLR pronounced itself on principles to consider as follows;“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.” 13.Whereas the minimum or maximum period of delay is not set out in law, it has been advanced, rightly so, that the delay should be satisfactorily explained. In addition to that, the reasons ought to be valid and clear thereby laying the basis for exercise of favorable discretion. See Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] KECA 701. 14.In the present matter, leave to file Notice of Appeal having been granted, and the Notice of Appeal actuary filed, this Court finds that the present application is spent, moot and overtaken by events thereby obviating any necessity to consider whether the aforesaid principles are applicable to this particular application which the court proceeds to strike out accordingly. 15.Accordingly, the application dated 5th May 2026 is hereby struck out for lack of jurisdiction as explained above. Costs of this application shall abide the outcome of the already filed appeal. DATED AND DELIVERED AT ELDORET THIS 17TH DAY OF JULY, 2026.NDERI NDUMA.....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar