Daniel Kimase Kipsoi v Protus Kiplagat Cheruiyo & 3 Others

D. THAT THE APPLICANTS UPON GRANT OF PRAYER (B) ABOVE BE GRANTED LEAVE TO FILE THEIR APPEAL OUT OF TIME AND THE NOTICE OF APPEAL FILED AND SERVED BY THE APPLICANTS BE DEEMED TO HAVE BEEN PROPERLY FILED AND SERVED E. THAT SUBSEQUENT TO THE ABOVE, THE HONORABLE COURT BE PLEASED TO GRANT AN ORDER FOR STAY OF EXECUTION PENDING THE HEARING AND DETERMINATION OF THE INSTANT APPLICATION AND THEREAFTER THE APPEAL. F. COSTS OF THIS APPLICATION BE COSTS IN THE APPEAL. 2. The facts in support of the prayers outlined hereinabove are contained in the body of the present Application as well as the Supporting Affidavit sworn therein and which can be summarized as follows; i. The Applicants herein are aggrieved by the Judgement of this Court pronounced on the 11.11.2025. ii. At the time when the Judgement of this Court was pronounced on the 11.11.2025, the Advocates on Record on behalf of the Applicants was the firm of T. CHERUIYOT & COMPANY ADVOCATES who did not inform them of the outcome pronounced in the Judgement. iii. It was only at the beginning of the year 2026 that the Applicants were informed of the Judgement pronounced on the 11.11.2025 and the pending evictions emanating from the said Judgement. iv. Upon getting wind of the information, the Applicants did visit the Court Registry and procured a copy of the said Judgement herein through the firm of J.K KAPTICH & ASSOCIATES, ADVOCATES. ELC.Number 35 of 2019(RULING) 2

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v. The Applicants therefore sought this Court to grant leave for the firm of J.K KAPTICH & ASSOCIATES, ADVOCATES to come on record on their behalf in place of T.CHERUIYOT & ASSOCIATES, ADVOCATES. vi. In addition to the above, the Applicants did seek the Court to extend time within which to file a Notice of Appeal against the Judgement pronounced on the 11.11.2025. vii. Thereafter, the Applicants did seek the Court to deem the Notice of Appeal dated 04.01.2026 which is out of time to be properly filed. viii. Lastly, the Applicants did seek for a Stay of Execution of the Judgement pronounced on the 11.11.2025 pending the hearing and determination of the intended Appeal herein. ix. The Applicants did state that the Order of Stay of Execution of the Judgement pronounced on the 11.11.2025 was to preserve the suit property and if the eviction orders were to effected, then their entire Appeal would be rendered nugatory. x. The Applicants did plead that the present Application had been filed within a reasonable time and that the failure to present the same within the time provided by the law was due to the previous advocates mistake and/or error which should not be visited on them. 3. The present Respondent. Application was duly 4. The Respondent herein did oppose the present Application through a Replying Affidavit dated 12. 01.2026. ELC.Number 35 of 2019(RULING) served upon the 3

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5. In the Replying Affidavit dated 12.01.2026, the Respondent did plead the following facts in opposition of the present Application; i. To begin with, the Respondent did not oppose the prayer for leave allowing the firm of J.K. KAPTICH & ASSOCIATES, ADVOCATES coming on record on behalf of the Applicants. ii. The Respondent did confirm that indeed, a Judgement had been pronounced on the 11.11.2025 in his favour against the Applicants herein. iii. During the hearing of the matter and in the Judgement pronounced on the 11.11.2025, it was found that the Applicants occupation on the suit property was unlawful, illegal and without any justification hence the issuance of an eviction order. iv. The Respondent did plead that at the time of the pronouncement of the Judgement on 11.11.2025, the Applicants’ Counsel was present and did receive the Judgement on behalf of the Applicants herein. v. Therefore, the Respondent did dispute the allegation that the Applicants were not aware of the Judgement pronounced on the 11.11.2025 until the month of January 2026. vi. The Respondent did oppose the extension and/or enlargement of time within which to file the Notice of Appeal on the basis that there being no reasonable and/or satisfactory explanation given for the delay. vii. The Respondent did further plead that the prayer for Stay of Execution of the Judgement pronounced on the 11.11.2025 was only geared to deny him the fruits of his Judgement relating to the suit property yet he had ELC.Number 35 of 2019(RULING) 4

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already suffered enough due to the period the matter took to be heard and concluded in Court. viii. Lastly, the Respondent did plead that the Applicants Appeal if any had no chances of success but just a delaying tactic to avoid enforcement of the Orders granted in the Judgement pronounced on the 11.11.2025. 6. The Respondents Replying Affidavit was duly served on the Applicants herein. 7. The Applicants did respond to the facts pleaded therein through a Further Affidavit dated 11.02.2026. 8. In the Further Affidavit dated 11.02.2026, the Applicants did state as follows; i. First and foremost, the firm of JK Kaptich & Associates has since procured a consent from their previous advocate to come on record on behalf of the said Applicants. ii. The Applicants did reiterate that the delay in filing the present Application and the Notice of Appeal herein occasioned by the delay of the previous advocates to communicate the outcome of the Judgement pronounced on the 11.11.2025. iii. The Applicants did clarify that at the time of the Judgement, the disputed portion of land was in their possession and use hence any enforcement of the eviction Orders pronounced in the Judgement made on 11.11.2025 would cause extensive losses to them and prejudice their intended Appeal before the Court of Appeal. iv. It was therefore the Applicants pleading that it is only fair and just that the Eviction Orders issued in the Judgement pronounced on the 11.11.2025 be stayed pending the hearing and determination of the Intended Appeal. ELC.Number 35 of 2019(RULING) 5

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9. v. In any event, the Applicants did plead that the occupation and use of the portion in dispute within the suit property was not hostile and therefore the Respondent did not stand to suffer any loss and/or prejudice if the Order of Stay of Execution of the Judgement made on the 11.11.2025 is allowed pending the hearing and determination of the intended Appeal. vi. In conclusion, the Applicants did pray that the present Application be allowed as prayed. After the parties did file the documents above, the Court did direct the present Application be canvassed by way of written submissions. 10. The Applicants did file their final submissions dated 21.02.2026 while the Respondent did file his submissions dated 17.04.2026. 11. The Court has perused the present Application in detail, the Respondent’s Replying Affidavit, the Further Affidavit and both submissions and identifies the following issues for determination; ISSUE NO.1- HAVE THE APPLICANTS DEMONSTRATED SUFFICIENT REASON WHY TIME TO FILE THE NOTICE OF APPEAL SHOULD BE EXTENDED & DEEMED PROPERLY FILED? ISSUE NO.2- HAVE THE APPLICANTS SATISFIED THE CONDITIONS REQUIRED TO GRANT AN ORDER OF STAY OF EXECUTION PENDING APPEAL AGAINST THE JUDGEMENT PRONOUNCED ON THE 11.11.2025? ISSUE NO.3- IS THE PRESENT APPLICATION MERITED OR NOT? ELC.Number 35 of 2019(RULING) 6

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ISSUE NO.4- WHO BEARS THE COSTS OF THE PRESENT APPLICATION? 12. Having identified the above issues, the court will now proceed to determine them as follows. ISSUE NO.1- HAVE THE APPLICANTS DEMONSTRATED SUFFICIENT REASON WHY TIME TO FILE THE NOTICE OF APPEAL SHOULD BE EXTENDED & DEEMED PROPERLY FILED? 13. The first issue for determination is whether the Applicants have demonstrated sufficient grounds upon which the Court can exercise its discretion and extend time within which to file a Record of Appeal against the Judgement pronounced on the 11.11.2025. 14. The Applicants did plead and submit that indeed, the Court did pronounce its judgement on the 11.11.2025 in determination of the suit herein. 15. However, the Applicants herein did file their Notice of Appeal dated 12.01.2026 on the 12.01.2026 which was outside the period provided in law to do so by about Fifty-Five (55) days from the date the Judgement was pronounced on the 11.11.2025. 16. According to the Applicants, the main reason for this late filing of the Notice of Appeal dated 12.01.2026 was the fact that the previous Advocates representing them did not communicate the pronouncement of the Judgement and/or explain to them outcome pronounced therein within the time line provided in law. 17. The Applicants did disclose to the Court that it was until January 2026 when they were informed that the Judgement in this matter had been pronounced on the 11.11.2026 and an Order of Eviction issued therein. ELC.Number 35 of 2019(RULING) 7

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18. The Applicants being unaware of this Judgement pronounced on the 11.11.2025 and/or its contents therein did attend Court and procure the same for their perusal and further action. 19. However, by this time, the period within which an aggrieved party is allowed in law to file a Notice of Appeal before the Registrar had already lapsed. 20. In other words, the Applicants did plead and submit that the delay in the filing of the Notice of Appeal on the 12.01.2026 against the judgement pronounced on the 11.11.2025 was not out of their own making but the lack of communication from the previous advocates who did represent them. 21. The Respondent on the other hand did oppose the Applicants main ground for seeking an extension for the period within which the Notice of Appeal should be filed. 22. The Respondent did plead and submit that the Applicants herein were fully aware of the Judgement pronounced on the 11.11.2025 immediately it was pronounced as their advocate was present in Court on the material day. 23. The Respondent did plead that it was the duty of the Applicants to follow and know the outcome of the Judgement pronounced on the 11.11.2025 and therefore, there is no satisfying explanation given as to why the Notice of Appeal dated 12.01.2026 was filed out of time yet the Applicants were duly represented by their Advocates at the time of its pronouncement. 24. In the case of PAUL MUSILI WAMBUA-VERSUS- THE ATTORNEY GENERAL & 2 OTHERS (2015) eKLR, the Court did outline the following considerations in deciding an application for leave to file a Notice of Appeal out of time; - ELC.Number 35 of 2019(RULING) 8

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“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.” 25. In essence, there are four important aspects that a Court should consider in determining an application on whether to extend time within which a Notice of Appeal should be filed and these are namely (a) the length of the delay, (b) the reason of the delay, (c)the chances of the appeal succeeding and (d) the degree of prejudice to the Respondent if the application is granted. 26. Beginning with the first aspect which is the length of the delay, it is not in dispute that the Judgement of which the Applicants are aggrieved with was pronounced on the 11.11.2025. 27. The provisions of Section 75 (1) & (2) of the Appellate Jurisdiction Act, Cap 9 provides as follows; “(1) Any person who desires to appeal to the Court shall give a Notice in writing, which shall be lodged in duplicate with the registrar of the superior Court.” ELC.Number 35 of 2019(RULING) 9

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(2) Every Notice shall, subject to Rules 84 and 97, be so lodged within fourteen (14) days of the date of the decision against which it is desired to appeal.” 28. Turning back to the present Application, the Applicants herein did attach the Notice of Appeal dated 12.01.2026 in their Supporting Affidavit as DKK 1. 29. The question then which this Court had to answer is whether the Notice of Appeal dated 12.01.2026 had indeed been lodged within Fourteen (14) days from the date of the Judgement pronounced on the 11.11.2025. 30. According to the provisions of Section 76 of the Appellant Jurisdiction Act, Cap 9, a Notice of Appeal is deemed to be duly lodged upon the Deputy Registrar acknowledging its receipt and inserting the date of the said receipt. 31. In the present application, the Notice of Appeal dated 12.01.2026 which is attached therein has not been received by the Deputy Registrar of this Court and therefore, there is no evidence that there is a properly lodged Notice of Appeal by the Applicants herein before this Court. 32. In the absence of a duly acknowledged Notice of Appeal as envisaged under Section 76 of the Appellant Jurisdiction Act, Cap 9, then the Applicants herein have no Notice of Appeal which is before the Court upon which the Court can exercise its jurisdiction to extend time and/or deem to be properly filed before the Court. 33. As such, this Court is of the considered view and finding that the Applicant’s prayer for extension of time and declaring the Notice of Appeal dated 12.01.2026 to be properly filed is premature for the reason that the Notice of Appeal dated 12.01.2026 is yet to be lodged and received by the Deputy Registrar of this Court to warrant this Court exercise its discretion if so persuaded. ELC.Number 35 of 2019(RULING) 10

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34. Having arrived at this finding on the Notice of Appeal dated 12.01.2026 attached to the Applicants present Application, then it would be an academic exercise to discuss the remaining aspects for consideration while dealing with an application for extension of time within which to file a Notice of Appeal. ISSUE NO.2- HAVE THE APPLICANTS SATISFIED THE CONDITIONS REQUIRED TO GRANT AN ORDER OF STAY OF EXECUTION PENDING APPEAL AGAINST THE JUDGEMENT PRONOUNCED ON THE 11.11.2025? 35. The second issue is whether the Applicants have laid sufficient grounds upon which this Court should grant an Order of Stay of Execution of its Judgement pronounced on the 11.11.2025 pending the hearing and determination of the Applicants intended Appeal before the Court of Appeal. 36. According to the pleadings by the Applicants, they are aggrieved by the Judgement pronounced on the 11.11.2025 by this Court and have since filed a Notice of Appeal dated 12.01.2026. 37. It was the Applicants prayer that once the Court extends time within which a Notice of Appeal can be filed and the Notice of Appeal dated 12.01.2026 deemed properly before the Court, then an Order of Stay of Execution of the Judgement pronounced on the 11.11.2025 be issued pending the hearing and determination of the intended Appeal. 38. However, based on the finding in Issue No.1, this Court did point out that the Notice of Appeal dated 12.01.2026 had never been lodged before the Deputy Registrar of this Court and duly received to warrant the consideration of the prayer to extend time and deem the same as duly lodged. 39. In other words, this Court at the time of determining the present application had no Notice of Appeal contained in its ELC.Number 35 of 2019(RULING) 11

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file duly lodged by the Applicants to demonstrate that indeed, there is a legal intention to Appeal against the Judgement pronounced by this Court on the 11.11.2025. 40. In the absence of a proper intention to Appeal through a lawful Notice of Appeal, then this Court then cannot consider a prayer for stay of execution of its Judgement pronounced on the 11.11.2025 as the Applicants are yet to properly lodge their intention to Appeal before the Deputy Registrar of this Court. ISSUE NO.3- IS THE PRESENT APPLICATION MERITED OR NOT? 41. Based on the findings on Issue No.1 and 2 hereinabove, this Court is of the finding that the present Application herein is not merited and the prayers sought cannot be granted as sought by the Applicants. ISSUE NO.4- WHO BEARS THE COSTS OF THE PRESENT APPLICATION? 42. As already settled, costs usually follow the event. 43. The Court having made a finding that the present application is not merited, then the Applicants are condemned to pay costs to the Respondent. CONCLUSION 44. In conclusion, this Court hereby makes the following orders in determination of the present Application herein; A. THE NOTICE OF MOTION DATED 12.01.2026 IS NOT MERITED AND THEREFORE FORTHWITH DISMISSED. B. THE APPLICANTS HEREIN ARE CONDEMNED TO PAY COSTS OF THE APPLICATION ON THE RESPONDENT HEREIN. ELC.Number 35 of 2019(RULING) 12

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DATED, SIGNED & DELIVERED Virtually at ELDORET ELC this 28TH DAY OF SEPTEMBER 2026. EMMANUEL.M. WASHE JUDGE IN THE PRESENCE OF: Court Assistant: Mr. Brian Respondent/Decree Holder: Defendant/Applicant: Mr. Kiboi Mr. Kigen ELC.Number 35 of 2019(RULING) 13

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