Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment (notice of motion dated 18th May 2026; intended appeal from Kapenguria HC Succession Cause No 2 of 2015)· [2026] KECA 1561 (KLR)

Psinen v Cherop (Civil Application E055 of 2026) [2026] KECA 1561 (KLR)

Court of Appeal of Kenya
31 July 2026
1,714 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

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

#
This is a ruling of the Court of Appeal at Eldoret delivered on 31st July 2026 by Ndolo, JA, sitting as a single Judge, on a notice of motion dated 18th May 2026 by Augustine Kotoruk Psinen. The applicant sought leave for the firm of Omwenga & Co Advocates to come on record in place of David Ingosi & Co Advocates; leave to lodge a notice of appeal and file an appeal out of time against the ruling of Mrima, J delivered on 20th September 2023 in Kapenguria HC Succession Cause No 2 of 2015; and a stay of proceedings and/or confirmation of grant. The High Court had upheld the respondent as administrator of the estate of Lomaria Kotoruk alias Plimo Kotoruk (deceased) on a presumption of marriage between the deceased and the respondent's grandmother, and directed that confirmation of the grant await the outcome of ELC No 54 of 2016. The motion 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 single Judge held that a plea for stay of proceedings lies beyond a single Judge's jurisdiction under rules 55(1) and (2) of the Court of Appeal Rules, and that parties are free to change counsel when they come on appeal. Applying the Supreme Court's Salat principles, he found the delay - especially the unexplained eleven months after judgment in ELC No 54 of 2016 on 16th June 2025 - inordinate and inexcusable, with no evidence of instructions to former counsel or follow-up, and prejudice to the respondent who had confirmed the grant and taken possession of the suit land. The motion was declined with costs to the respondent.

Key legal issues

#
01

Jurisdiction of a single Judge of Appeal over a plea for stay of proceedings.

Holding

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.

Reasoning

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.

p. 2
02

Whether leave is needed for an incoming advocate to come on record on appeal.

Holding

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.

Reasoning

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.

p. 2
03

The principles governing an application for extension of time.

Holding

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.

Reasoning

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.

p. 3
04

Whether the delay in lodging the notice of appeal and filing the appeal was excused and whether the respondent would be prejudiced.

Holding

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.

Reasoning

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.

p. 4

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. 1.The notice of motion dated 18th May 2026 was declined in its entirety.
  2. 2.Costs of the application were awarded to the respondent.

Authorities

#

Legislation

  • Appellate Jurisdiction Actsections 3A & 3B
  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 55(1) & (2)
  • Court of Appeal Rulesrule 77
  • Court of Appeal Rulesrule 79
  • Court of Appeal Rulesrule 84; rule 84(2)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure RulesOrder 50 rule 6

Cases cited (1)

  • Nicholas Kiptoo Salat vs Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
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.