Kiplagat (Suing through nephew and next friend John Kibor Biwot) v Kogo & 2 others (Civil Application E085 of 2026) [2026] KECA 1637 (KLR)
The bottom line
#The Court of Appeal refused to extend time for a late appeal because a 13-month delay was unexplained, even though the appeal itself looked arguable.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted extension of time to appeal out of time against the ruling delivered in Kapsabet ELC (OS) E007 of 2024 on 25th February 2025.
- 2.Whether an order for stay of execution should be granted on the taxation proceedings of the 3rd respondent's Bill of Costs pending the intended appeal (the court declined to determine this issue, holding it outside the ambit of a single Judge under Rule 55(2)(b) of the Court of Appeal Rules, 2022).
- 3.Whether the court should pronounce, at the interlocutory stage, on the applicant's locus standi and the contention that the application cites wrong provisions of law (declined; both issues are grounds of the intended appeal).
Key legal issues
#Whether the applicant satisfied the Rule 4 factors for extension of time to appeal out of time.
No. The delay of approximately 13½ months was unexplained: the claimed mediation was unsupported by any evidence, the advocate's inadvertence was unsubstantiated, and the respondents would be prejudiced. The application for extension of time was dismissed.
The court applied the Fakir Mohammed factors: the period of delay, the reasons for it, the chances of the appeal succeeding and the prejudice to the respondents. The notice of appeal was filed on 5th March 2025 and, under Rule 84(1), the appeal was due by 4th May 2025, yet the application was not lodged until 19th June 2026 - a delay of approximately 13½ months. The claimed mediation with the 1st respondent was denied and unsupported by any invitation or referral document, and the advocate's inadvertence was asserted without evidence. The explanation was therefore neither persuasive nor satisfactory.
Whether arguability of an intended appeal can compensate for inordinate, unexplained delay.
No. An arguable appeal cannot see the light of day where the delay is unconscionable and not satisfactorily explained; the applicant's laxity was deliberate and inexcusable and the respondents would be prejudiced.
The applicant annexed an undated memorandum of appeal which the court accepted was arguable. It nevertheless held that arguability cannot rescue an appeal from unconscionable, unexplained delay. Weighing the equities, the court found the applicant's laxity deliberate and inexcusable and accepted that the respondents would be prejudiced by the delay. It invoked the Supreme Court's pronouncement in Nicholas Kiptoo Arap Korir that extension of time is not a right but an equitable remedy for a deserving party, and declined to exercise its Rule 4 discretion. The decision confirms that the arguability factor cannot compensate for a failed explanation for delay.
Whether a single Judge of the Court of Appeal may grant a stay of taxation proceedings / stay of further proceedings pending appeal.
No. Under Rule 55(2)(b) of the Court of Appeal Rules, 2022, applications for stay of execution, injunction or stay of further proceedings fall outside the ambit of a single Judge; the court confined itself to the extension-of-time prayer and did not determine the stay prayer.
The court deprecated omnibus applications that bundle prayers outside a single Judge's powers. Rule 55(2) of the Court of Appeal Rules, 2022 defines the remit of a single Judge, and Rule 55(2)(b) expressly places applications for stay of execution, injunction or stay of further proceedings outside that remit. The prayer to stay the taxation of the 3rd respondent's bill of costs was therefore not determined and remains a matter for the full Court. The court confined itself to the enlargement-of-time prayer, which it then dismissed on the merits.
Whether the court should determine, at the interlocutory stage, the applicant's locus standi and the alleged citation of wrong provisions of law.
Declined. Both issues are grounds of the intended appeal and were reserved for the hearing of the appeal, not for the interlocutory application.
The 1st and 3rd respondents urged that the application was fundamentally defective for citing wrong provisions of law and that the representative lacked capacity to act for the applicant, a matter said to have been determined in the courts below. The court observed that both issues appear as grounds in the undated memorandum of appeal and considered it improper to pronounce on them at an interlocutory juncture. They were reserved for the hearing of the intended appeal, if leave to appeal is ever obtained.
Legal principles established
#- Extension of time under Rule 4 of the Court of Appeal Rules, 2022 is a discretionary, equitable remedy available only to a deserving party; it is not a right.
- The governing factors for extension of time are the period of delay, the reasons for the delay, the chances of the appeal succeeding if the application is granted, and the degree of prejudice to the respondents.
- Arguability of an intended appeal cannot cure inordinate delay that is not satisfactorily explained; an otherwise arguable appeal will be shut out where the delay is unconscionable and unjustified.
- A single Judge of the Court of Appeal may not entertain applications for stay of execution, injunction or stay of further proceedings; under Rule 55(2)(b) of the Court of Appeal Rules, 2022 those applications fall outside a single Judge's remit and are for the full Court.
Court orders
#- 1.The Notice of Motion dated 19th June 2026 is dismissed for lack of merit.
- 2.No order as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court at Kapsabet
- Kapsabet ELC (OS) E007 of 2024
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2022 (the court anchored the grant of extension of time there); the motion was also expressed to be brought under section 3A and section 95 of the Civil Procedure Act, Cap 21 and Article 159 of the Constitution of Kenya
Relief refused
#Extension of time to appeal out of time against the ruling in Kapsabet ELC (OS) E007 of 2024 delivered on 25th February 2025
The delay of approximately 13½ months was neither persuasively nor satisfactorily explained: the claimed mediation with the 1st respondent was denied and unsupported by any evidence, the advocate's inadvertence was unsubstantiated, and the respondents would be prejudiced by the unjustified delay.
Stay of the taxation proceedings of the 3rd respondent's Bill of Costs pending the intended appeal
The court declined to determine this prayer because applications for stay of execution, injunction or stay of further proceedings fall outside the ambit of a single Judge under Rule 55(2)(b) of the Court of Appeal Rules, 2022; the court confined itself to the enlargement-of-time issue.
Determination of the applicant's locus standi and the contention that the application cites wrong provisions of law
Both issues appear as grounds of the intended appeal in the undated Memorandum of Appeal, and the court considered it improper to pronounce on them at an interlocutory juncture.
Costs
No order as to costs.
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, I find that the application lacks merit and is hereby dismissed with no order as to costs.
extension of time is not a right but an equitable remedy to a deserving party.
Even though the appeal is arguable, the same cannot see the light of the day in view of the unconscionable delay that is not satisfactorily explained by the applicant.
Rule 55 (2) (b) in particular lists applications for; stay of execution, injunction or stay of further proceedings outside the ambit of a single Judge.
In the circumstances I conclude that the reasons for delay are neither persuasive nor satisfactory.
the period of delay, reasons for the delay, chances of the appeal succeeding if the application is granted and the degree of prejudice to the respondents if the application is granted.
Issues in the judgment
#The judgment does not disclose the Court of Appeal application number or any neutral citation, and the 1st, 2nd and 3rd respondents are identified only by role, never by name; the case title and party names in this brief are therefore reconstructed from the limited information available.
Internal inconsistency in the treatment of the delay: the court computed the delay at approximately 13 and 1/2 months ('the appeal ought to have been instituted on or before 4th May 2025 marking a delay of approximately 13 and 1/2 months') but later stated that 'The period of delay has not been computed in law.'
The procedural history is left ambiguous: the intended appeal lies against a ruling of the Environment and Land Court at Kapsabet, yet the 1st respondent asserts that the representative-capacity question was determined at 'the trial and 1st appellate court', implying an additional appellate layer that the judgment does not otherwise explain.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiplagat (Suing through nephew and next friend John Kibor Biwot) v Kogo & 2 others (Civil Application E085 of 2026) [2026] KECA 1637 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1637/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.