Psinen v Cherop (Civil Application E055 of 2026) [2026] KECA 1561 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time for a delayed succession appeal because nearly two years of delay went unexplained and the estate had already been distributed.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of a single Judge of Appeal over a plea for stay of proceedings.
A plea for stay of proceedings falls outside the jurisdiction of a single Judge of Appeal and could not be entertained on the omnibus motion.
The motion was omnibus, seeking leave to change advocates, extension of time, and a stay of proceedings and/or confirmation of grant. The single Judge warned at the outset that sitting as a single Judge his jurisdiction is constrained, and that a plea for stay of proceedings is beyond it by dint of rules 55(1) and (2) of the Court of Appeal Rules. That prayer therefore dropped out of the application without any merits adjudication.
Whether leave is needed for an incoming advocate to come on record on appeal.
Appeal proceedings are not a continuation of the lower court proceedings; parties are at liberty to change counsel when they come on appeal, so the change of advocates raised no obstacle.
In disposing of prayer (a), the Judge reasoned that appeal proceedings before the Court of Appeal are not a continuation of proceedings before the lower court. The party-advocate relationship is therefore treated afresh on appeal, and the incoming firm may come on record without the constraints applying to ongoing lower court proceedings. The Judge expressly rested the issue there and moved to the only surviving plea.
The principles governing an application for extension of time.
Extension of time is governed by the Salat principles: it is an equitable, discretionary remedy, not a right, granted case by case on the length of and reason for the delay, prejudice to the respondent, promptness of the application and, in suitable cases, public interest.
Both parties relied on the Supreme Court's decision in Nicholas Kiptoo Salat v IEBC & 7 Others, and the Judge adopted its seven principles as the governing framework. Rule 4 of the Court of Appeal Rules donates the power, exercisable 'on such terms as may be just'. The applicant bears the burden of laying a basis to the satisfaction of the Court, and the inquiry is fact-specific rather than mechanical.
Whether the delay in lodging the notice of appeal and filing the appeal was excused and whether the respondent would be prejudiced.
The application failed: the delay was inordinate and inexcusable. The applicant explained 20th September 2023 to 16th June 2025 only by reliance on counsel's advice and the pendency of ELC No 54 of 2016, but gave no explanation for the eleven months after 16th June 2025 and no evidence of instructions or follow-up; the respondent, who had implemented the ruling, would be prejudiced.
The Judge found the claimed instructions unsubstantiated, questioning why an applicant with an advocate on record would personally apply for typed proceedings, and noting that although payment was made there was no written application for them. No follow-up or steps towards the appeal were demonstrated. Prejudice weighed heavily: the ruling was over two years old, the grant had been confirmed, and the respondent and her two siblings had taken possession and ownership of West Pokot Keringet (A)/79. Although arguability was asserted, the decision turned on delay and prejudice, and the motion was declined with costs.
Legal principles established
#- A single Judge of the Court of Appeal has no jurisdiction to entertain a plea for stay of proceedings; such relief is governed by rule 55(1) & (2) of the Court of Appeal Rules and must be sought before the full Court.
- Appeal proceedings before the Court of Appeal are not a continuation of the proceedings before the lower court; parties are at liberty to change counsel when they come on appeal.
- Extension of time is a discretionary equitable remedy assessed case by case on the length of delay, the reason for the delay, prejudice to the respondent and the arguability of the intended appeal; it is not a right.
- An applicant who blames a former advocate for delay must adduce evidence of the instructions allegedly given; a bare assertion, unsupported by evidence or demonstrated follow-up, does not discharge the burden of explaining the delay.
Court orders
#- 1.The notice of motion dated 18th May 2026 was declined in its entirety.
- 2.Costs of the application were awarded to the respondent.
- On appeal from
- High Court of Kenya at Kapenguria
- Kapenguria HC Succession Cause No 2 of 2015
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act, rules 4, 77, 79 and 84 of the Court of Appeal Rules, Article 159(2)(d) of the Constitution and Order 50 rule 6 of the Civil Procedure Rules; the operative power to extend time is donated by rule 4 of the Court of Appeal Rules, while the jurisdiction of a single Judge is constrained by rules 55(1) and (2) of the Court of Appeal Rules.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Psinen v Cherop (Civil Application E055 of 2026) [2026] KECA 1561 (KLR)", Case Analysis (2026). Not stated in the judgment (notice of motion dated 18th May 2026; intended appeal from Kapenguria HC Succession Cause No 2 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1561/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.