Rono & another (Suing as the Legal Representatives of the Estate of Mathias Kimnyole Langat) v Cove Investments Limited & 5 others (Civil Application E065 of 2025) [2025] KECA 2029 (KLR)
The bottom line
#The Court of Appeal refused two land owners permission to restart their appeal because they had sold disputed land while the case was still in court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a single judge can determine the prayer for leave to file a fresh notice of appeal and record of appeal (the stay prayer being reserved for a full bench)
- 2.Whether the applicants should be granted leave/extension of time to file a fresh notice of appeal and record of appeal against the ruling and orders of Odeny, J. dated 15th October 2024
- 3.Whether the applicants deserve the exercise of the Court's discretion given their conduct, including the doctrine of lis pendens and unclean hands
- 4.Whether the preliminary objection barring the single judge from revisiting a decision of a full bench has merit
Key legal issues
#Exercise of discretion under Rule 4 of the Court of Appeal Rules, 2022
The applicants' application for leave to file a fresh notice of appeal was dismissed because they lacked clean hands; they had sold and transferred the suit property during the pendency of litigation and in breach of a court order, and the full bench had already determined the issues on 20th June 2025.
The Court acknowledged its discretion under Rule 4 to extend time but held the discretion must be exercised to promote, not defeat, substantial justice. Though the application was filed promptly (within 5 days), promptness alone does not entitle a party to condonation. The Court weighed the applicants' conduct: they sold and transferred the suit property pendente lite, contrary to a subsisting injunction, and concealed the transfer. The 20th June 2025 full-bench ruling had already declared the transfer an abuse of process and extinguished the applicants' standing. A litigant seeking equitable assistance must come with clean hands.
Effect of the full bench ruling of 20th June 2025
The ruling of 20th June 2025 (Mativo, Gachoka & Odunga JJ.A.) subsumed and determined all issues now raised, having struck out the notice of appeal dated 22nd October 2024 for want of service, rendering the appeal non-existent.
The Court reiterated that in the 20th June 2025 ruling it had held the applicants transferred the suit property pendente lite in violation of the doctrine of lis pendens and contrary to a court order; that this constituted abuse of process and constructive abandonment of the appeal; and that by transferring the property the applicants lost their standing. Granting leave to file a fresh appeal would amount to re-hearing matters conclusively determined by a full bench.
Arguability of the intended appeal
While an applicant must possibly demonstrate an arguable appeal, arguability alone does not suffice; the explanation for delay and the bona fides and conduct of the applicant must also be considered.
The Court cited its prior jurisprudence that whether an intended appeal has merits is assessed with the qualifier 'possibly', since a single judge cannot determine merits with finality. Even assuming arguability, the Court held that absence of delay is not the only requirement: sufficient cause does not automatically entitle a party to condonation, and the Court considers bona fides, the history of the case and the parties' conduct.
Legal principles established
#- The discretion under Rule 4 to extend time must be exercised to serve substantial justice, guided by legal principles, and is informed by the overall conduct of the parties, including whether the litigant comes to court with clean hands.
- Absence of delay or a satisfactory explanation for delay is not the only requirement; condonation of delay is an exceptional remedy, not a right, and remains within the Court's discretion.
Court orders
#- 1.The prayer seeking stay of execution of the ruling and orders issued on 15th October 2024 is not properly before a single judge and was not determined
- 2.The application dated 25th June 2025 seeking leave to file a fresh notice of appeal and record of appeal is dismissed
- 3.Costs of the application awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court, Nakuru
- ELC Petition No. 360 of 2017 (Cove Investments Limited vs Johana Kiprotich Rono & Others)
- Jurisdiction invoked
- Sections 3, 3A & 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules, 2022
Relief refused
#Leave to file a fresh notice of appeal and record of appeal against the ruling of Odeny, J. dated 15th October 2024
The applicants did not approach the Court with clean hands; they transferred the suit property pendente lite in violation of the doctrine of lis pendens and contrary to a subsisting court order, and all issues were already determined by the full bench on 20th June 2025
Stay of execution of the ruling and orders of 15th October 2024
Omnibus application containing orders that cannot be heard and determined by a single judge
Costs
The application dated 25th June 2025 is dismissed with costs to the 1st respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, the application dated 25th June 2025 lacks merit and is accordingly dismissed with costs to the 1st respondent.
I find that the applicants are undeserving of the exercise of the discretion of this Court in their favour because they have not approached this Court with clean hands.
A litigant must not come to court with unclean hands. A litigant must come to court with clean hands to receive the court's equitable assistance.
Condoning delay is an exceptional remedy, not a right.
It should be guided by law and inspired by a desire to promote justice. It should not be arbitrary, vague and fanciful and should not be ruled or governed by humour.
Issues in the judgment
#Paragraph numbering repeats: the paragraph beginning 'Talking about the conduct of the parties' is numbered 24 but is followed by a paragraph numbered 23.
The preliminary objection asserts the matter has been referred to the Supreme Court and its decision is awaited, but the ruling does not resolve or address this claim.
Inconsistent dates in the record: the 2nd respondent's transfer is described as occurring on 31st October 2017 while the applicants state they entered the sale agreement on 17th July 2017 and obtained Land Control Board consent on 14th September 2019, which post-dates the stated transfer date.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rono & another (Suing as the Legal Representatives of the Estate of Mathias Kimnyole Langat) v Cove Investments Limited & 5 others (Civil Application E065 of 2025) [2025] KECA 2029 (KLR)", Case Analysis (2025). Civil Application (as extracted from the ruling; application dated 25th June 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2029/eng@2025-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.