Cheruiyot (Suing in his own Capacity as an Administrator of the Estate of Esther Cheruiyot) & another v AIC Ainabkoi Church & 7 others (Civil Application E074 of 2026) [2026] KECA 1555 (KLR)
The bottom line
#Kenya's Court of Appeal extended time to appeal a 2022 land ruling but left any request to stop enforcement to a full bench.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Which prayers in the omnibus application fall within the competence of a single judge of the Court of Appeal, and which require a full bench?
- 2.Whether the applicants should be granted extension of time under Rule 4 of the Court of Appeal Rules, 2022 to file and serve the Memorandum of Appeal and Record of Appeal out of time, having regard to the period of and reasons for the delay and any prejudice to the respondents.
- 3.Whether the intended appeal is arguable and whether the respondents would suffer prejudice if leave were granted.
Key legal issues
#Which prayers in an omnibus application may a single judge of the Court of Appeal determine?
An omnibus application mixing prayers within and beyond a single judge's competence is not entertained wholesale; the single judge determines only the competent prayers (here, extension of time under Rule 4) and directs the applicant to the full bench for the rest.
The judge observed that the Court has repeatedly deprecated omnibus applications joining prayers whose jurisdiction is variously donated, citing Associated Construction Company v Kyamu Construction and Mpaka v Ikiugu. Some orders sought, notably stay of execution, fall within the purview of a full bench, while extension of time under Rule 4 lies within a single judge's competence. In the interest of justice he therefore confined the ruling to the extension-of-time prayer, leaving the applicants at liberty to seek the remaining orders before the correct forum.
Whether the applicants satisfied the Rule 4 principles for extension of time.
Extension of time was granted: the delay was excusable because the intention to appeal was evinced timeously and the lapse lay in obtaining proceedings not within the applicants' direct control.
Relying on the Supreme Court's guidance in Nicholas Kiptoo Arap Korir v IEBC, the judge treated extension of time as an equitable remedy available to a deserving party, not a right, weighing the period of delay, the reasons for it and potential prejudice to the respondents. The law prescribes no exact measure of delay; the test is whether it is satisfactorily explained. The applicants filed a Notice of Appeal and requested typed proceedings within the requisite period, and the delay in obtaining the proceedings was not within their direct control, so the lapse was excusable.
Whether the intended appeal is arguable and whether granting leave would prejudice the respondents.
The application being unopposed, no prejudice to the respondents was shown and the draft Memorandum of Appeal was not frivolous on its face.
No response had been filed despite service, and nothing advanced suggested the respondents would suffer prejudice if leave were granted. The applicants annexed a draft Memorandum of Appeal whose grounds, on their face, were not frivolous, indicating the intended appeal was arguable. These considerations supported the exercise of discretion in the applicants' favour, with the Record of Appeal to be filed within thirty days so the appeal could be determined on its merits, and costs made to abide the outcome of the appeal.
Legal principles established
#- A single judge of the Court of Appeal will not entertain an omnibus application wholesale where the prayers fall under different jurisdictional heads; the single judge deals only with the prayers within single-judge competence (such as extension of time under Rule 4), and the applicant must pursue the rest, such as stay of execution, before the correct forum.
- The power to extend time is unfettered but must be exercised judiciously; extension of time is an equitable remedy for a deserving party, assessed on the period of delay, the reasons for it and the potential prejudice to the respondent.
- There is no fixed measure of an inordinate delay; the operative test is whether the delay has been satisfactorily explained, and a delay occasioned by obtaining proceedings from the trial court, outside the applicant's direct control, is excusable.
Court orders
#- 1.The application dated 22nd May 2026 allowed in respect of the extension-of-time prayer only.
- 2.The Memorandum of Appeal deemed duly lodged upon payment of requisite fees.
- 3.The Record of Appeal to be filed and served within 30 days from the date of the ruling.
- 4.Costs of the application to abide the outcome of the appeal.
- 5.The applicants left at liberty to apply for the stay of execution and other orders before the correct forum (a full bench).
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court
- Eldoret ELC Petition No. 22 of 2019
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4, 41, 43 and 47 of the Court of Appeal Rules, 2022
Relief refused
#Stay of execution of the judgment in Eldoret ELC Petition No. 22 of 2019 and any consequential orders pending the intended appeal
Not granted by the single judge: the prayer falls within the purview of a full bench, and the judge confined himself to the extension-of-time prayer, leaving the applicants at liberty to apply before the correct forum. It was not refused on the merits.
Costs
Costs of this application shall abide the outcome of the appeal.
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.
Accordingly, I find that the application dated 22nd May 2026 has merit and it is hereby allowed in the following terms
The Memorandum of Appeal is deemed duly lodged upon payment of requisite fees.
The Record of Appeal to be filed and served within 30 days from the date of this ruling.
Costs of this application shall abide the outcome of the appeal.
This Court has decried the practice of jointly seeking several prayers where the jurisdiction of this Court is variously donated.
In exercising discretion to extend time for filing an appeal, the court ought to consider extension of time not as a right of a party but as an equitable remedy only available to a deserving party, at the discretion of the court.
Notably, the exact measure for period of delay is not set out in law. The parameter relied on by the Court is therefore whether the delay has been satisfactorily explained and if the reasons lay basis for exercise of discretion.
the lapse appears to have been in getting the proceedings which were not within the direct control of the applicants after lodging their request, therefore it is excusable.
Issues in the judgment
#The ruling as supplied carries no caption: the title, application number and neutral citation of this Court of Appeal application are not stated, and only the 2nd applicant (Abraham Kosgei Kebenei) is named — the 1st applicant and the respondents are unidentified in the text. Only the lower-court case, Eldoret ELC Petition No. 22 of 2019, is identified by number.
The supplied text contains typographical/OCR errors (e.g. 'afidavit' for 'affidavit', 'sufier' for 'suffer', 'efiect' for 'effect'), which should be borne in mind when verifying verbatim quotes against the official judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheruiyot (Suing in his own Capacity as an Administrator of the Estate of Esther Cheruiyot) & another v AIC Ainabkoi Church & 7 others (Civil Application E074 of 2026) [2026] KECA 1555 (KLR)", Case Analysis (2026). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1555/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.