[2025] KECA 744 (KLR)

Ng'etich & 5 others v Ng'etich & 3 others (Criminal Application E047 of 2024) [2025] KECA 744 (KLR) (5 May 2025) (Ruling)

Neutral citation: [2025] KECA 744 (KLR)

Republic of Kenya

In the Court of Appeal at Eldoret

Criminal Application E047 of 2024

JM Mativo, JA

May 5, 2025

Between

Benjamin Kirwa Ng'etich

1st Applicant

Benjamin Kirwa Koko

2nd Applicant

Joshua Kimibei Yego

3rd Applicant

Julius Kemei

4th Applicant

Rossy Jepkoech Japheth

5th Applicant

Caroline Jepchumba Ng'etich

6th Applicant

and

Stanley Kipruto Ng'etich

1st Respondent

Mary Barng"etuny

2nd Respondent

Peter Tallam

3rd Respondent

Joseph Tallam

4th Respondent

(Being an application from the judgment of the Environment and Land Court at Kapsabet (M. N. Mwanyale, J.) dated 18th March 2022 in ELC Case No.23 of 2012)

Ruling

1. Vide an application dated 31st July 2024 under Rule 4, of the Court of Appea1 Rules 2022, the applicant prays for extension of time within which to file and serve a notice of appeal and a letter bespeaking of certified typed proceedings against the Judgment issued on 25th September 2023 in Kapsabet Environment and Land Court Case No. 23 of 2012 - Stanley Kipruto Ng'etich vs. Mary Barg'etuny, Peter Tallam, and Joseph Tallam.

2. The application is premised on the grounds listed on the face of the application and the 1st applicant’s supporting affidavit sworn on 31st July, 2024. The grounds in support of the application are that:-(a) the 1st applicant was unaware of the Judgment and or proceedings before the ELC Kapsabet that led to cancellation of his title deed; (b) the 1st applicant got to know of the proceedings in Kapsabet Environment & land Case No. 23 of 2021 on or about 10th July 2024 when he was called to testify as a witness in a case of malicious damage to property as brought by Joshua Kimibei Yego (the 3rd applicant herein) as against the 4th respondent; (c) there has not been delay in bringing the instant application; (d) the intended appeal is arguable with high chances of success and the applicants are desirable that the intended appeal should be heard on merit.

3. On 22nd April 2024 at 11. 34 AM the Deputy Registrar of this Court sent out a hearing notice via e-mail informing counsel/the parties herein that the instant application would be heard by way of written submissions and there shall be no appearance of counsel in court or via video link. In that regard, the applicant and the respondent were reminded to comply with the Court’s directions relating to service and filing of submissions before the hearing date.

4. Today, 5th May 2024 at 9. 00 AM when the application came up for hearing before me, and as at the time of writing this ruling, the respondent had not filed a response to the instant application and none of the parties had complied with the Court’s directions in the hearing notice. The directions were communicated to the parties’ respective e-mails: [info@orblaw.co.ke]; [keneiadvocate@gmail.com]; [kessemaureen@gmail.com].

5. Rule 58 (1) of the Court of Appeal Rules 2022 stipulates as follows:“If, on any day fixed for the hearing of an application, the applicant does not appear or comply with directions, the application may be dismissed, unless the Court sees fit to adjourn the hearing: Provided that the Court may order that an application may be heard by way of written submissions and where parties have filed written submissions, the court shall consider the submissions.”

6. Pursuant to the above rule, and being duly satisfied that the parties were duly served as herein above stated, and despite being served, they have failed to comply with the Court’s directions, I hereby dismiss the instant application in accordance with Rule 58 (1) of this Court’s Rules for non- compliance with the directions of the Court issued on April 22, 2024.

DATED AND DELIVERED AT ELDORET THIS 5TH DAY OF MAY 2025. J. MATIVO...........................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR.