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Court of AppealDismissedCivil Application E138 of 2025

Mosonik v Changwony & another

Court of Appeal
25 September 2026
2,409 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal dismissed an attempt to delay an expedited appeal and ordered the applicants' own lawyer to personally pay the costs.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nakuru (Mativo, Kairaria and Ahmed Issack, JJ.A) dismissing an application dated 5th May 2026 in which the applicants sought variation or rescission of orders made on 21st April 2026. On that earlier date the applicants' counsel had abandoned an application to strike out the respondents' notice of appeal, the Court marked it withdrawn with no orders as to costs, and gave directions for expedited hearing of the respondents' Civil Appeal No. E227 of 2025, with timelines for filing written submissions. The applicants, who enjoy status quo orders protecting their possession of LR Nakuru/Lengenet/792, sought to rescind only the expedited-hearing portion, invoking the FIFO principle in the 2016 Practice Directions. The Court held that review under rule 59(2) of the Court of Appeal Rules 2022 is narrow and confined to two situations, neither of which applied, since the impugned order specified times for doing acts. On the substance, the Court held the directions were lawful, issued in exercise of its constitutional mandate under Articles 164(3) and 159(2)(b) and the overriding objective of the Appellate Jurisdiction Act, and that FIFO does not displace the Court's inherent power under section 3A to expedite matters. The application was dismissed with costs awarded personally against the applicants' counsel, who was found to have advised resistance to lawful orders and to have made baseless imputations against the presiding Judge and opposing counsel. Further directions were issued to bring the appeal back on track for priority hearing.

Questions the Court framed

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

  1. 1.Whether the application meets the prerequisites for review under rule 59(2) of the Court of Appeal Rules 2022
  2. 2.Whether the directions of 21st April 2026 for expedited hearing of the appeal should be varied or rescinded

Key legal issues

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01

Whether the application satisfied rule 59(2) prerequisites for review

Holding

It did not; the order of 21st April 2026 neither extended time without a specific date nor permitted an act without specifying the time for doing it

Reasoning

Rule 59 permits variation or rescission in only two situations. The impugned order had two parts: marking the earlier application withdrawn with no orders as to costs, and giving specific timelines for filing submissions. Neither part fell within the two statutory scenarios, so the application failed on that ground alone without considering its substance.

p. 3
02

Whether the directions for expedited hearing were lawful and should stand

Holding

They were lawful, made in exercise of the Court's constitutional mandate for timely disposal and the overriding objective, and the applicants' resistance was self-interested since they enjoy status quo orders

Reasoning

The Court held the applicants were enjoying status quo protecting their possession of LR Nakuru/Lengenet/792 and wished the appeal to drift. The First In First Out principle does not displace the inherent jurisdiction under section 3A to expedite matters where the interests of justice demand. Counsel's conduct in advising resistance to lawful orders attracted personal costs.

p. 4

Legal principles established

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  • Review under rule 59(2) of the Court of Appeal Rules 2022 is narrow and available only in the two situations specified in rule 59(1)
  • The Court's power to give directions for expedited hearing of appeals is grounded in its constitutional mandate and the overriding objective of the Appellate Jurisdiction Act, and the First In First Out principle in the Practice Directions does not oust that power

Court orders

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  1. 1.Application dated 5th May 2026 dismissed with costs to be borne personally by the Applicants' counsel
  2. 2.Appellants to comply with the directions of 21st April 2026 by filing and serving written submissions within 14 days from the date of the ruling
  3. 3.Respondent to file and serve written submissions within 14 days of being served with the Appellants' submissions
  4. 4.If the parties comply, the appeal to be fixed for hearing on a priority basis
  5. 5.If any party does not comply, the other party is at liberty to apply to the Court for appropriate orders

The bench

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

majority

Wrote the judgment

majority
majority
Jurisdiction invoked
Article 164(3) of the Constitution of Kenya (2010); rule 59(2) of the Court of Appeal Rules 2022; Section 3A of the Appellate Jurisdiction Act

Relief refused

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Variation or rescission of the order of 21st April 2026 directing filing of submissions and expedited hearing of the appeal

The order did not fall within either of the two situations permitting review under rule 59(2), and the directions were lawful, given in furtherance of the overriding objective

p. 3

Costs

Application dismissed with costs to be borne directly and personally by the Applicants' counsel, who was found to bear the greatest responsibility for non-compliance with the Court's directions of 21st April 2026

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.

It is a narrow jurisdiction and only permits variation or rescission of a court order in terms of sub rule 1 of Rule 59.
p. 3Scope of review jurisdiction under rule 59(2)
That the principle of First In First Out in the 2016 Court of Appeal Practice Directions does not take away inherent jurisdiction of this Court under Section 3A of the Appellate Jurisdiction Act, which preserves the power of the Court to expedite any matter where the interest of justice so demand.
p. 3FIFO principle versus inherent power to expedite (as recorded from the replying affidavit)
We therefore find no merits in the subject application and dismiss it with costs to be borne directly by the Applicants' counsel whom we find bears the greatest responsibility for noncompliance with this Court's directions of 21st April, 2026.
Disposition and personal costs order against counsel
The Appellants shall comply with the directions given by this Court on 21st April, 2026 i.e file and serve written submissions within 14 days from the date of this ruling.
p. 4Final directions

Issues in the judgment

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minor

Application filed within an already withdrawn application was entertained and determined without comment on propriety

minor

Bench names appear inconsistently between heading, coram and signature block

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, "Mosonik v Changwony & another", Case Analysis (2026). Civil Application E138 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1770/eng@2026-09-25

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