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Court of AppealDismissedCivil Application No. E079 of 2022 (application dated 1st December, 2025)

Bett (Suing as the Legal Representative of the Estate of the Late ESTHER Chepkirui Ngeno) v Langat (Civil Appeal (Application) E079 of 2022) [2026] KECA 1136 (KLR)

Court of Appeal of Kenya
12 June 2026
2,357 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to revive an appeal because the applicant used the wrong procedure and had never actually filed a full appeal in the first place.

What this practically means

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Executive summary

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This was an application, not a substantive appeal, before the Court of Appeal at Nakuru seeking reinstatement of an appeal against the judgment of A. N. Ongeri J delivered on 7th October 2022 in Kericho High Court Succession Cause No. 259 of 1999, in the estate of Kimagut Arap Ngeno. The applicant had filed a notice of appeal dated 13th October 2022 but failed to serve it within the timelines prescribed by the Court of Appeal Rules; the respondent applied to strike it out, and the application was allowed in the absence of the applicant's previous counsel. The applicant sought reinstatement, invoking Rule 4 of the Court of Appeal Rules 2022. The court held that both parties were mistaken in invoking Rule 4, which governs extension of time, not reinstatement; the correct provision is the proviso to Rule 105(1), which applies where an appeal has been dismissed for the appellant's non-appearance at the hearing, subject to the thirty-day limit in Rule 105(3). On the facts, the court found that the applicant never instituted an appeal at all: what was filed as Civil Appeal/Civil Application No. E079 of 2022 was an application for stay of execution under Rule 5(2)(b), and no memorandum of appeal or record of appeal was ever lodged under Rule 84. Since the notice of appeal was struck out rather than an appeal dismissed for non-attendance, the proper remedy would have been an application for extension of time within which to lodge and serve a fresh notice of appeal, which the applicant had not sought. The application was accordingly dismissed with costs to the respondent. This decision binds subordinate courts and the High Court on the distinction between Rule 4 (extension of time) and Rule 105(1) (restoration of dismissed appeals).

Questions the Court framed

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

  1. 1.Whether the applicant's application dated 1st December, 2025 seeking reinstatement of the appeal is merited

Key legal issues

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01

Whether Rule 4 of the Court of Appeal Rules 2022 is the proper basis for reinstating an appeal

Holding

Rule 4 is not the proper basis; it deals only with extension of time. Reinstatement is governed by the proviso to Rule 105(1), and the prerequisites of Rule 4 are irrelevant to a reinstatement application.

Reasoning

Both parties erroneously invoked Rule 4. The court read Rule 4 plainly and held that it grants power to extend time limited by the rules or by a court order for doing any act authorised by the Rules. The court then identified the proviso to Rule 105(1) as the relevant provision for restoration of a dismissed appeal, setting out its conditions: an appeal existed; it came up for hearing; it was dismissed for non-appearance; and the applicant was prevented by sufficient cause from appearing, with application made within thirty days under Rule 105(3).

p. 3
02

Whether the applicant had an appeal capable of reinstatement under Rule 105(1)

Holding

No. The applicant instituted no appeal; what existed was Civil Application No. E079 of 2022, an application for stay of execution, and no memorandum of appeal or record of appeal was lodged under Rule 84.

Reasoning

An appeal is instituted by lodging a memorandum of appeal and record of appeal in the appropriate registry under Rule 84. The applicant tendered no evidence of such documents. What was actually filed and given the number E079 of 2022 was a stay application dated 4th November 2022, which fell away once the notice of appeal underpinning it was struck out. Moreover, the notice of appeal was struck out for failure to serve it within the Rule 79 timelines, not dismissed for the applicant's non-appearance, so Rule 105(1)'s conditions were never met.

p. 4

Legal principles established

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  • Rule 4 of the Court of Appeal Rules confers power to extend time, not power to reinstate appeals.
  • The correct rule governing reinstatement of a dismissed appeal is the proviso to Rule 105(1) of the Court of Appeal Rules 2022, and the applicant must satisfy the conditions of that proviso plus the thirty-day time limit under Rule 105(3).
  • Under Rule 84, an appeal is instituted by lodging a memorandum of appeal and record of appeal; a notice of appeal coupled with an application for stay does not amount to an appeal.
  • Where a notice of appeal has been struck out for failure to serve it within the prescribed timelines, the applicant's remedy is an application for extension of time to lodge and serve a fresh notice of appeal, not reinstatement under Rule 105(1).

Court orders

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  1. 1.The application dated 1st December, 2025 is dismissed
  2. 2.Costs of the application to the respondent

The bench

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

majority
majority
On appeal from
High Court of Kenya at Kericho
Succession Cause No. 259 of 1999, Estate of the late Kimagut Arap Ngeno
Jurisdiction invoked
Sections 3, 3A and 3B of the Appellate Jurisdiction Act (CAP 9), Rules 44 and 105(1) & (3) of the Court of Appeal Rules 2022, and Articles 48 and 159 of the Constitution of Kenya 2010

Relief refused

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Reinstatement of the appeal against the judgment and decree of A. N. Ongeri J

No appeal existed to restore; what was filed was a stay-of-execution application, and the notice of appeal was struck out (not an appeal dismissed for non-attendance), so Rule 105(1) reinstatement was unavailable and the correct remedy would have been an application for extension of time to lodge and serve a fresh notice of appeal

p. 4

Costs

The application is dismissed with costs to the respondent.

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.

The relevant rule for purposes of an application for reinstatement or restoration of a dismissed appeal is the proviso to Rule 105[1] of the Court of Appeal Rules 2022.
p. 3Correct rule for reinstatement of dismissed appeals
Rule 4 of the rules of this Court does not deal with reinstatement of appeals at all. Instead, it grants this Court power to extend time limited by the rules of the Court or by an order of the Court or the Superior Court for doing any act authorized by the Rules on such terms as are just.
p. 3Scope of Rule 4 - extension of time, not reinstatement
we are satisfied that the applicant did not have an appeal in respect of which we could possibly issue an order for restoration under Rule 105[1] of the Court of Appeal Rules.
p. 4No appeal existed to restore
the applicant’s remedy was not an application for reinstatement of an appeal but rather an application for extension of time within which to lodge and serve a fresh notice of appeal.
p. 5Proper remedy after striking out a notice of appeal
We have said enough to show that the application before us is devoid of any merits, and is accordingly dismissed with costs to the respondent.
p. 5Final orders and disposition

Issues in the judgment

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minor

The chronology as stated is internally inconsistent: the notice of appeal is dated 13th October, 2022, yet the respondent's application to strike it out is dated 7th November, 2022, and the judgment records that application as having 'come up for hearing on 3rd November, 2025 and was allowed' while the respondent separately asserts it 'was allowed in the presence of counsel for the applicant' after the status quo order of 30th May, 2023; the sequence of the striking-out relative to the stay application is not clearly reconciled.

minor

The applicant is described inconsistently in the case title, once as legal representative of 'Esther Chepkirui Ngeno' and elsewhere as legal representative of 'Esther Chepkurui Ngeno'.

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, "Bett (Suing as the Legal Representative of the Estate of the Late ESTHER Chepkirui Ngeno) v Langat (Civil Appeal (Application) E079 of 2022) [2026] KECA 1136 (KLR)", Case Analysis (2026). Civil Application No. E079 of 2022 (application dated 1st December, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1136/eng@2026-06-12

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