Lagat & another v Masoin & 2 others (Civil Appeal (Application) E053 of 2025) [2026] KECA 994 (KLR) (22 May 2026) (Ruling)

Lagat & another v Masoin & 2 others (Civil Appeal (Application) E053 of 2025) [2026] KECA 994 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KECA 994 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Appeal (Application) E053 of 2025 PM Gachoka, WK Korir & L Ndolo, JJA May 22, 2026 Between Kipkoech Lagat 1st Applicant Toroitich Chelagat 2nd Applicant and Maria Jebet Arap Masoin 1st Respondent Richard K. Sawe 2nd Respondent Kipkemboi E. Toroitich 3rd Respondent (Being an application for an order of stay of execution against the judgment of the High Court at Eldoret (Wananda, J.) dated 9th May 2025 in Succession Cause No. E076 of 2021) Ruling 1.When the two motions were placed before us for hearing, we consolidated them and first heard the one dated 5th January 2026 brought by Kipkoech Lagat and Toroitich Chelagat through which they seek to strike out the memorandum and the record of appeal dated 7th July 2025 and filed on 15th July 2025 by Maria Jebet Arap Masoin, Kipkemboi Emmanuel Toroitich, and Richard Kiprotich Sawe. Maria Jebet Arap Masoin, Kipkemboi Emmanuel Toroitich, and Richard Kiprotich Sawe are the appellants in the appeal, and for convenience, we will refer to them in this ruling as the appellants, whereas Kipkoech Lagat and Toroitich Chelagat, who are the respondents in the appeal, will be referred to as the respondents. The memorandum of appeal and record of appeal were filed in respect to the judgment of Wananda, J. delivered on 9th May 2025 in Eldoret High Court Succession Cause No. 76 of 2021. On their part, the appellants filed a notice of motion dated 8th October 2025 seeking an order staying the execution of the same judgment. 2.In their motion for striking out, the respondents contend that the appellants failed to serve the record of appeal within the seven-day window prescribed by rule 92 (1) of the Court of Appeal Rules. The respondents aver that although the appeal was filed on 15th July 2025, it was not served until 26th November 2025, well beyond the stipulated period. They assert that this failure constitutes an essential step not taken within the prescribed time, rendering the appeal amenable to striking out. The respondents further contend that their application was filed within thirty days of service, as required by rule 86, considering that the period of the Christmas recess from 21st December 2025 to 13th January 2026 is excluded when computing time. 3.In opposition, the appellants swore a joint replying affidavit on 30th April 2026 through which they depose that the memorandum and record of appeal were filed on 15th July 2025 and served on the respondents’ counsel on 16th July 2025, well within seven days. To support this averment, they annex an email extract dated 16th July 2025 and a court payment receipt (No. RB-0039653) dated 15th July 2025. They further aver that the document served on 26th November 2025 was not the record of appeal but rather their application for stay of execution dated 8th October 2025. Moreover, the appellants contend that the motion to strike out is itself incompetent and statute-barred, having been filed on 5th January 2026 after the lapse of the thirty-day period within which the application ought to have been brought as per rule 86. According to the appellants, the time for filing the application expired on 29th December 2025. In urging the Court to dismiss the application, they maintain that the motion filed on 5th January 2026 was seven days late and beyond the Court’s jurisdiction and should therefore be dismissed with costs. 4.On 4th May 2026, when the applications came up for hearing, learned counsel Mr. Kaira Nabasenge appeared for the appellants, while learned counsel Mr. Bundotich Korir represented the respondents. Apart from adopting the submissions they had filed, learned counsel made brief oral arguments. 5.During the hearing, Mr. Bundotich Korir indicated that he had filed a further affidavit and submissions dated 30th April 2026, but it turned out that the submissions filed were in regard to the appellants’ application for stay of execution. Be that as it may, counsel indicated that the respondents were contesting the appellants’ exhibits. He insisted that service of the memorandum of appeal and the record of appeal was effected on 26th November 2026, and counsel for the appellants had indeed sworn an affidavit to that effect. With respect to the appellants’ argument that the application was filed outside the 30 days provided by the Court’s rules, counsel persisted that the application was filed within the 30 days provided by rule 86. 6.In opposition to the application for striking out, Mr. Kaira Nabasenge through submissions dated 30th April 2026 while citing Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] eKLR to acknowledge that jurisdiction is everything and a court without jurisdiction should down its tools, adverted to section 57 of the Interpretation and General Provisions Act as to how time ought to be computed and proceeded to take the Court through mathematical calculations and pronounced that the 30 days provided by rule 86 of the Court of Appeal Rules for filing the motion lapsed on 29th December 2025. Counsel maintained that the application, having been filed on 5th January 2026, was seven days late. In support of the argument, counsel cited the decision in Total Kenya Limited vs. Reuben Mulwa Kioko [2018] KECA 138 (KLR), where the Court dismissed an application to strike out a notice of appeal and record of appeal because it was filed outside the thirty-day period. Counsel therefore urged us to strike out the motion with costs. 7.On the merits of the respondents’ application, counsel for the appellants submitted that the memorandum of appeal and record of appeal dated 7th July 2025 were filed on 15th July 2025 and duly served upon the respondents’ counsel on 16th July 2025 in compliance with rule 92(1). Counsel relied on the appellants’ averments and the annexures. According to counsel, the respondents’ allegation of late service is a deliberate misrepresentation and an abuse of the court process. In conclusion, counsel urged that the motion dated 5th January 2026 be dismissed and that costs be awarded to the appellants. 8.We have carefully considered the application, the affidavit in support thereof, the replying affidavit, submissions by the parties, the authorities cited, and the law. Two issues emerge for our determination. The first issue is whether the application for striking out the memorandum of appeal and the record of appeal was filed out of time and should therefore be struck out, and the second question is whether the notice of motion, if sustained, should be allowed. 9.We start by considering the merits of the notice of motion. Rule 85 of the Court of Appeal Rules provides that:“(1)If a party who has lodged a notice of appeal fails to institute an appeal within the appointed time, that party shall be deemed to have withdrawn the notice of appeal and the Court may, on its own motion or on application by any other party, make such order.(2)The party in default under sub-rule (1) shall be liable to pay the costs arising therefrom of any persons on whom the notice of appeal was served.” 10.On the other hand, rule 86 states:“A person affected by an appeal may at any time, either before or after the institution of the appeal, apply to the Court to strike out the notice or the appeal, as the case may be, on the ground -a.that no appeal lies; orb.that some essential step in the proceedings has not been taken or has not been taken within the prescribed time:provided that an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days after the date of service of the notice of appeal or record of appeal, as the case may be.” 11.In this particular application, the respondents contend that the record of appeal was served outside the 7 days window permitted by the rules. However, the Court observes that the appellants have adduced credible and unrebutted evidence, including an email extract dated 16th July 2025 and a court payment receipt (Ref. No. RB-0039653) dated 15th July 2025. These documents demonstrate that the memorandum and record of appeal were served on the respondents’ counsel on 16th July 2025. This was well within the seven-day requirement of rule 92(1). The respondents’ allegation that service occurred only on 26th November 2025 conflates the record of appeal with a subsequent application for stay of execution dated 8th October 2025, which we heard alongside the application for striking out. The email address (koriradvocate@yahoo.com) used for service of both the record of appeal and the notice of motion for stay of execution of the judgment is identical, which undermines the respondents’ contention that they were not served. Therefore, even without going into the question of whether the application for striking out was brought within the 30-day window, as should be, we find the application to be without merit and fit for dismissal. 12.Consequently, the motion dated 5th May 2026 by the respondents is hereby dismissed. 13.We now turn to the application by the appellants for stay of execution. The application for stay is grounded on the basis that the appellants’ appeal is arguable and may be rendered nugatory should a stay order not issue as prayed. The appellants further aver that, despite having filed an application for stay before the High Court, they have since withdrawn it. They contend that the trial court erred in failing to recognize them as beneficiaries or dependents, that the judgment is ambiguous and lacks finality, that the respondents are in the process of subdividing the estate, and that, unless a stay is granted, the intended appeal will be rendered nugatory. 14.In opposition to the application, the 1st respondent swore an affidavit on 30th April 2026. The respondents contend that the application is frivolous, vexatious, incompetent, and an abuse of the Court process. They aver that the appellants have not demonstrated an arguable appeal nor that the appeal will be rendered nugatory if a stay is not granted. Additionally, the respondents aver that the application is incompetent because the appellants have not obtained leave to appeal. 15.In support of the application, the appellants filed submissions dated 27th April 2026, while the respondents filed submissions dated 30th April 2026, though in the application for striking out. We have perused the submissions, which reiterate and converge on the principles applicable to the grant of orders under rule 5(2)(b) of this Court’s Rules. We identify the sole issue for determination in this second application to be whether the appellants have established the existence of an arguable appeal, which, in the absence of an order staying execution, would be rendered nugatory. 16.The jurisdiction of this Court under Rule 5 (2) (b) is original and discretionary. It is well-settled that an applicant must satisfy the Court on both limbs, that is, that the intended appeal is arguable, meaning it is not frivolous, and that the appeal would be rendered nugatory if stay is not granted. See Reliance Bank Ltd vs. Norlake Investments Ltd [2002] 1 EA 227. The key parameters for examining whether an applicant satisfies the dual limbs are as highlighted by this Court in the case of Kinyanjui vs. Ketter & 5 Others [2013] KECA 378 (KLR) as follows:“From the long line of decided cases (although none was cited by counsel, perhaps due to their notoriety) on Rule 5(2) (b) aforesaid, the common vein running through them and the jurisprudence underlying these decisions can today be summarized as follows:i.In dealing with Rule 5(2) (b) the court exercises original and discretionary jurisdiction and that exercise does not constitute an appeal from the trial judge's discretion to this court. See Ruben & 9 Others vs. Nderitu & Another (1989) KLR 459.ii.The discretion of this court under Rule 5(2)(b) to grant a stay or injunction is wide and unfettered provided it is just to do so.iii.The court becomes seized of the matter only after the notice of appeal has been filed under Rule 75. Halai & Another vs. Thornton & Turpin (1963) Ltd. (1990) KLR 365.iv.In considering whether an appeal will be rendered nugatory the court must bear in mind that each case must depend on its own facts and peculiar circumstances. David Morton Silverstein vs. Atsango Chesoni, Civil Application No. Nai 189 of 2001.v.An applicant must satisfy the court on both of the twin principles.vi.On whether the appeal is arguable, it is sufficient if a single bonafide arguable ground of appeal is raised. Damji Pragji Mandavia vs. Sara Lee Household & Body Care (K) Ltd, Civil Application No. Nai 345 of 2004.vii.An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous. Joseph Gitahi Gachau & Another vs. Pioneer Holdings (A) Ltd. & 2 others, Civil Application No. 124 of 2008.viii.In considering an application brought under Rule 5 (2) (b) the court must not make definitive or final findings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal. Damji Pragji (supra).ix.The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling. Reliance Bank Ltd vs. Norlake Investments Ltd [2002] 1 EA 227 at page 232.x.Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.xi.Where it is alleged by the applicant that an appeal will be rendered nugatory on account of the respondent's alleged impecunity, the onus shifts to the latter to rebut by evidence the claim. International Laboratory for Research on Animal Diseases vs. Kinyua, [1990] KLR 403.” 17.On the first limb, the appellants have filed a memorandum of appeal raising 23 grounds. Among these grounds are contentions that the learned Judge erred in failing to recognize the appellants as dependents under section 29 of the Law of Succession Act, that he erred in distributing the estate without finality, that he ignored evidence contained in the Chief’s letters, and that he misapplied the provisions of the Law of Succession Act. We have perused the impugned judgment and the memorandum of appeal. Without expressing a definitive opinion on the merits of the appeal, we are satisfied that the grounds raised are not frivolous but are arguable. Accordingly, we find that the appellants have discharged the burden of demonstrating that the appeal is arguable. 18.On the second limb, the appellants contend that the respondents are in the process of subdividing the estate and that if the judgment is executed, the suit land may be transferred to third parties, thereby rendering the appeal nugatory. The respondents did not expressly deny that the subdivision is underway. The estate comprises two parcels of land measuring approximately 66.54 acres. The appellants have been in occupation of a portion of about 4 to 5 acres for nearly 36 years. This was acknowledged even by the trial court in its judgment. If the respondents proceed with the subdivision and transfer the land, and the appellants ultimately succeed on appeal, it would be difficult, if not impossible, to reverse the transaction or restore the status quo. The substratum of the appeal would be lost. In these circumstances, we are persuaded that the appeal would be rendered nugatory if a stay is not granted. 19.The respondents’ argument that the application is incompetent for lack of leave to appeal is without merit. This is an appeal against the High Court exercising its jurisdiction as a trial court, and therefore, leave was not a prerequisite. This position of the law was recently affirmed by the Supreme Court in Wandi vs. Muchira (Suing as the Administrator Ad Litem of Jane Muthoni Muchira) [2026] KESC 29 (KLR). 20.From the foregoing discussion, it is evident that the appellants have sufficiently demonstrated that they have an arguable appeal which is likely to be rendered nugatory if this Court fails to grant an order of stay pending the hearing and determination of the already filed appeal. Consequently, the motion by the appellants dated 3rd October 2025 has merit and is hereby allowed. 21.In the end, and for purposes of clarity, the notice of motion dated 5th May 2026 filed by the respondents (Kipkoech Lagat and Toroitich Chelagat) lacks merit and is hereby dismissed. Conversely, the notice of motion dated 3rd October 2025 by the appellants (Maria Jebet Arap Masoin, Kipkemboi Emmanuel Toroitich, and Richard Kiprotich Sawe) has merit and is hereby allowed. 22.There being a pending appeal and since the two applications were heard together, the costs for the applications shall abide the outcome of the main appeal. DATED AND DELIVERED AT ELDORET THIS 22ND DAY OF MAY 2026.M. GACHOKA C.Arb, FCIArb............................... JUDGE OF APPEALW. KORIR............................... JUDGE OF APPEALL. M. NDOLO...............................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR