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Court of AppealDismissedNot stated in the judgment (application dated 11th April 2024; reference to Succession Cause No. 86 of 2024, High Court at Kericho)

Chesang & 5 others v Koech & 2 others (Civil Application E096 of 2024) [2025] KECA 1628 (KLR)

Court of Appeal
9 October 2025
1,046 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed six women's attempt to appeal a Kericho succession ruling because they were never formal parties to the case and delayed too long.

What this practically means

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Executive summary

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This was a ruling by M. Warsame, JA, of the Court of Appeal at Nakuru on a notice of motion dated 11th April 2024 seeking extension of time to file an appeal out of time against the judgment of J K Sergon, J, delivered on 14th December 2023 in Kericho High Court Succession Cause No. 86 of 2024, confirming a grant in the intestate estate of Stanley Kesusu Kimwei. The applicants, six women claiming to be beneficiaries excluded from the distribution, said they learned of the judgment on 4th March 2024. The respondents opposed, contending the applicants were never parties to the succession proceedings, lacked locus standi, and had not explained the delay. The court upheld the jurisdictional challenge: the record showed none of the applicants was a party; the protester was Weldon Koech, who was not an applicant. Testifying as witnesses did not confer party status, and claimed entitlement under section 29 of the Law of Succession Act did not override the requirement that only parties may appeal. The applicants should have regularised their party status by formal application before seeking to appeal. Independently, the approximately four-month delay was unexplained and showed indolence. Applying Imperial Bank Ltd v Alnasir Popat on extension-of-time principles, the court dismissed the application with no orders as to costs. The decision below was not disturbed; the intended appeal cannot proceed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether parties who were not parties to the protest in the High Court succession proceedings can file an application for extension of time to appeal
  2. 2.Whether the applicants, as persons who testified as witnesses and claim to be potential beneficiaries, have locus standi to appeal
  3. 3.Whether the applicants provided an adequate explanation for the delay in filing the application for extension of time

Key legal issues

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01

Locus standi of non-parties seeking to appeal in succession proceedings

Holding

Persons who were never parties to the succession proceedings, including those who merely testified as witnesses, lack the right to appeal.

Reasoning

The court examined the High Court record and found none of the six applicants were parties; the protester was Weldon Koech, who is not an applicant. Testifying at the invitation of a party does not confer party status. Claimed beneficiary status under section 29 of the Law of Succession Act does not override the statutory requirement that only parties may appeal.

p. 2
02

Extension of time and explanation for delay

Holding

The approximately four-month delay from judgment to filing the application was inadequately explained, demonstrating a lack of diligence.

Reasoning

No explanation was given for the nearly three months of unawareness of the judgment, nor for the further month taken after becoming aware to file the application. The applicants should have monitored proceedings if they genuinely believed their inheritance rights were at stake. Applying the Imperial Bank principles, the delay was not sufficiently explained.

p. 2

Legal principles established

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  • Only parties to proceedings have a right of appeal; testifying as a witness confers no party status.
  • A person claiming an interest in succession proceedings must regularise their party status before appealing; they cannot appeal as if they had been parties all along.
  • An applicant for extension of time must account for the whole period of delay and show it was not occasioned by indolence.

Court orders

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  1. 1.The application dated 11th April 2024 is dismissed
  2. 2.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority

Wrote the judgment

Single judge dismissed the applicants' application for extension of time to appeal, holding that the applicants were not parties to the High Court succession proceedings and lacked locus standi, and that the delay was not sufficiently explained.

For the foregoing reasons, I find and hold that this application is fundamentally fiawed and cannot succeed. Consequently, I dismiss the application with no orders to cost.p. 3
On appeal from
High Court of Kenya at Kericho
Succession Cause No. 86 of 2024
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over High Court decisions, exercised through an application for extension of time to file an appeal out of time

Relief refused

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Extension of time to file an appeal out of time against the judgment of 14th December 2023

Applicants were not parties to the High Court proceedings and lacked locus standi; the delay was not sufficiently explained

p. 3

Costs

Dismissed with no orders to cost (each party to bear their own costs in effect)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

being a witness does not confer party status. A witness participates in proceedings at the invitation of a party but does not become a party themselves by virtue of testifying. The distinction between a party and a witness is fundamental to our procedural law.
p. 2locus standi - witnesses v parties
the proper course of action was to regularise their status as parties before the High Court or before this court by way of a formal application.
p. 2regularising party status before appealing
An applicant seeking extension of time must demonstrate that the delay was not occasioned by indolence or carelessness but by factors beyond the applicant's control.
p. 2extension of time - explanation for delay
For the foregoing reasons, I find and hold that this application is fundamentally fiawed and cannot succeed. Consequently, I dismiss the application with no orders to cost.
p. 3final orders - dismissal

Issues in the judgment

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minor

The judgment refers to the succession cause as 'Succession Cause No. 86 of 2024' but the judgment being appealed was delivered on 14th December 2023, predating a 2024 cause number; the cause number may be misstated in the judgment.

minor

The judgment states the respondents were appointed administrators on 17th July 2015 for a cause numbered 86 of 2024, an apparent internal inconsistency in dates and cause numbering.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Chesang & 5 others v Koech & 2 others (Civil Application E096 of 2024) [2025] KECA 1628 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 11th April 2024; reference to Succession Cause No. 86 of 2024, High Court at Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1628/eng@2025-10-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.