Peris Jelimo Kemei v Abraham Kipkosgei Chelanga & The Land Registrar Uasin Gishu County

(f) That the Appellant be granted leave to comply with any outstanding directions within such time as the Court shall direct. (g) That the costs of this application be in the cause. 2. The application is premised on 14 grounds on the face thereof, and the Supporting Affidavit sworn on even date by Peris Jelimo Kemei. 3. The Applicant deponed that the judgment was delivered against her on 26th September, 2024 in Eldoret MCELC No. E074 of 2021. 4. That upon being dissatisfied with the said judgement, she instructed her advocate, Julius Tarus who is now deceased to prepare and institute an appeal. 5. The Applicant herein further depones that before the said Appeal could formally be filed by the Advocate, the said Counsel fell seriously ill and was unable to continue handling the said matter. 6. The Applicant herein contends that in order to safeguard her right to appeal, another Advocate temporarily stepped in and lodged an appeal on her behalf. 7. In addition, the Applicant states that she genuinely believed that the said Advocate had taken over the conduct of the matter and that the appeal was being prosecuted. ELC Appeal Case No. 020 Of 2025 Ruling Page 2

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8. It is the Applicant’s claim that she was never informed of any court’s direction requiring compliance nor notified that the said Appeal was dismissed. 9. It is deponed by the Applicant that she later realized that the Advocate who had filed the said Appeal did not continue handling the matter as they resumed to other professional engagements without formally notifying her or ensuring compliance with the Court’s directions. 10. That the said Appeal was subsequently dismissed for noncompliance, the exact date of dismissal being within the Court record. 11. The Applicant further depones that she only discovered the said dismissal upon making professional follow-up inquiries regarding the status of the Appeal and at all material times she remained desirous of prosecuting the Appeal and did not abandon the same. 12. According to the Applicant herein, she remained remained desirous of prosecuting the Appeal and did not abandon the same as the dismissal was occasioned by inadvertence and/or omission of the Counsel and not through any fault on the Applicant’s part. 13. In addition, that upon discovering the dismissal, the Applicant depones that she instructed M/s Kipchenger & Company Advocates to take over the conduct of the matter. ELC Appeal Case No. 020 Of 2025 Ruling Page 3

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14. That the delay in bring the Application has been occasioned by the transitional representation of the Counsel and the time reasonably required to ascertain the status of the appeal and secure proper legal representation. 15. The Applicant herein depones that the said Appeal raises serious and arguable issues of law and fact and the dispute concerns land which is unique and of great personal and proprietary value to the Applicant. 16. That unless the stay is granted, the Respondent herein may proceed with the execution, rendering the Appeal nugatory. 17. In conclusion, the Applicant stated that she is ready and willing to comply with any conditions the Honourable Court may impose including provision of security if required. 18. The Application was opposed. The 1 st respondent filed a Replying Affidavit sworn and dated 3 rd July, 2026 in response to the claims made against him. 19. The 1st Respondent averred that the Application dated 5 th March 2026 is fatally defective, incompetent and bad in law given the fact that the Supporting affidavit of the Applicant has never been signed by the deponent nor a commissioner for oath hence the same should be struck out with costs issued to the said 1st Respondent. 20. That the judgement of the trial Court was delivered on 26 th September, 2024 while the alleged dismissed appeal was filed on 8th May, 2025 without the leave of the Court hence there has ELC Appeal Case No. 020 Of 2025 Ruling Page 4

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never been a competent appeal on record worth being reinstated herein. 21. The Application herein was canvassed by way of written submissions. The Applicant herein filed her written submissions dated 30th June 2026 through the office of M/s. Kipchenger & Company Advocates. The Advocate representing the 1 st Respondent herein informed the Honourable Court that he was not intending to file any submissions. Analysis and Determination: 22. I have carefully considered the motion, the grounds pleaded in support thereof, the Supporting Affidavit and the Replying Affidavit. I have also read and considered the submissions filed by the Applicant herein as well as the law and the authorities cited thereunder. 23. The court finds that the issues for determination are: i. Whether the Supporting Affidavit is competent and, if not, whether the defect should be regularised. ii. Whether the Applicant has demonstrated sufficient cause for the reinstatement of the Appeal. iii. Whether the Applicant has satisfied the threshold for the grant of the orders sought. iv. Who bears the costs of the application? i. Whether the Supporting Affidavit is competent and, if not, whether the defect should be regularised . ELC Appeal Case No. 020 Of 2025 Ruling Page 5

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24. There is a preliminary issue to be considered before examining the application on merit. In opposing the application, the respondent raised the fact that the supporting affidavit filed in support of the application was neither commissioned nor signed and was therefore fatally defective. 25. Sections 4 and 5 of the Oaths and Statutory Declarations Act provides how affidavits are to be commissioned. They also provide the particulars to be stated in jurat or the attestation clause. They require every commissioner for oaths before whom any oath or affidavit is taken to state in the jurat or attestation at what place and on what date the oath or affidavit is taken or made. 26. Therefore, Order 19 Rule 3 and Section 5 of the Oaths and Statutory Declarations Act requires that an affidavit be signed by the deponent and attested by a Commissioner for Oaths. An unsigned, uncommissioned document is not an affidavit at all. It has no probative value. 27. In Geoffrey Githinji Mwangi & 2 others v Jubilee Party & 11 others [2018] eKLR, the court held that: “As we have already seen in the relevant provisions of the Oaths and Statutory Declarations Act, the Chief Justice will appoint as commissioners’ individual advocates in practice, not their firms. Such commission is personal to the particular advocate so appointed. The commission is not issued to his firm. An affidavit therefor ought to show that it was taken by an individual advocate ELC Appeal Case No. 020 Of 2025 Ruling Page 6

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and commissioner for oaths, not by a firm of advocates. If affidavits were to be taken by a firm of advocates, what would prevent any member of that firm, be they advocates who have not been appointed commissioners for oaths, or clerks and secretaries, from purporting to take affidavits on behalf of such firm? That would clearly be against the clear provisions of the Oaths and Statutory Declarations Act.” 28. This is in line with the case of David Wamatsi Omusotsi v The Returning Officer Mumias East Constituency & 2 others, High Court Kakamega Election Petition No. 9 of 2017 [2017] eKLR. In that case Njagi, J held inter alia: – “It is clear from the provisions of the said Act that affidavits cannot be commissioned by a firm of advocates as happened in this case. An affidavit can only be commissioned by a commissioner for oaths and other officials of the court allowed to do so under the Act...” 29. It is clear that the Affidavit herein was not signed nor commissioned. 30. What about Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to disregard technicalities? 31. Kiage, JA in Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others [2013] eKLR held: ELC Appeal Case No. 020 Of 2025 Ruling Page 7

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“… I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is a clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned…” 32. In my considered view, the defects raised on the applicant’s supporting affidavit are not mere technicalities but touch on a point of law as it is in breach of section 4 and 5 of the Oaths and Statutory Declarations Act. They were not commissioned by an advocate recognised under section 2 of the Act nor signed by the Applicant in support of the said Application. The ELC Appeal Case No. 020 Of 2025 Ruling Page 8

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Honourable court therefore hereby strikes out the purported supporting affidavit of the Applicant herein as it is incurably defective. 33. Having struck out the supporting affidavit, the application dated 5th March,2026 is therefore rendered incompetent as it falls short of the content required under Order 51 Rule 4 of the Civil Procedure Rules which provides that: “Every notice of motion shall state in general terms the grounds of the application, and where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served.” 34. This is a mandatory requirement and without a duly filed compliant affidavit to support the application, the same cannot stand by itself as it requires evidence. ii. Whether the Applicant has demonstrated sufficient cause for the reinstatement of the Appeal; 35. I have perused the said Application dated 5 th March 2026. It is trite law that the power to reinstate an appeal or application that has been dismissed for non-compliance is discretionary and is exercised on certain considerations. In considering an application for reinstatement of an application, Nambuye, JA in Ngugi -vs- Thogo (Civil Application 372 of 2018) [2021] KECA 88 (KLR) stated:“ IX. In an application for reinstatement of a court process, there is need to balance the requirement ELC Appeal Case No. 020 Of 2025 Ruling Page 9

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as to whether reasonable grounds have been proffered for reinstatement and the prejudice to be suffered by the opposite party if such an order for reinstatement were to issue bearing in mind at the same time that dismissal is a draconian order that drives parties away from the seat of justice and should therefore be employed sparingly.” 36. In addition, the courts have set out the factors that are to be taken into account, in such cases. In Ivita v Kyumbu [1984] KLR 441 (Chesoni, J), the considerations were said to include whether the delay is prolonged and inexcusable; whether justice can be done despite the delay; justice is justice for both sides, and so the positions of both sides must be considered; whether the other side would be prejudiced, by justice not being done by the prolonged delay; and the reasons given for the delay. 37. Whether to reinstate a dismissed suit would call for exercise of discretion in line with Articles 50 and 159 of the Constitution, and the oxygen principle in sections 1, 1A and 3A of the Civil Procedure Act, Cap 21, Laws of Kenya. These were discussed in John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] eKLR [2015] KEHC 6789 (KLR) (Gikonyo, J), where it was stated that the fundamental principles of justice are enshrined in Article 159 of the Constitution, coupled with Article 50, with respect to the right to be heard, and to serve substantive justice to all. It was underscored that those principles ought to be factored when ELC Appeal Case No. 020 Of 2025 Ruling Page 10

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considering reinstatement of dismissed suits, bearing in mind that dismissal of suits is draconian. 38. The Applicant herein pegs the mistake to the two advocates who were dealing with the said Appeal. It is trite law that where justice of the case mandates, mistakes of advocates even if they are blunders, should not be visited on the clients when the situation can be remedied by costs. In the case of Lucy Bosire vs Kehancha Div. Land Dispute Tribunal & 2 Others [2013] eKLR, the court held as follows: “It must be recognized that blunders will continue to be made from time to time and it does not follow that because a mistake has been made a party should suffer the penalty of not having his case determined on its merits.” 39. However, it is not in every case that a mistake committed by an advocate would be a ground for setting aside orders of the court. In Savings and Loans Limited vs Susan Wanjiru Muritu Nairobi (Milimani) HCCS No. 397 of 2002, Kimaru J (as he then was) held: “Whereas it would constitute a valid excuse for the defendant to claim that she had been let down by her former advocates failure to attend court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate’s failure to attend ELC Appeal Case No. 020 Of 2025 Ruling Page 11

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court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the dismissal.” 40. Similarly, in the case of Eldoret Grains Limited vs Gilbert Kiptoo Kipkoech & 14 Others (Civil Application 108 of 2019) [2021] KECA 273 (3 December 2021) (Ruling) the Court of Appeal cited with approval the case of Rajesh Rughani vs Fifty Investment Ltd & Another (2005) eKLR and held: “It is not enough simply to accuse the advocate for failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction that is not excusable mistake which the court may consider with some sympathy.” 41. In Bains Construction Co. Ltd vs John Mzare Ogowe (2011) eKLR the Court of Appeal observed: “It is to some extent true to say mistakes of counsel as in the present case should not be visited upon a party but it is equally true when counsel as agent is vested with authority to perform some duties and does not perform it, surely such principal should bear the consequences.” 42. In the present case, it is the Applicant’s explanation that she initially instructed the late Julius Tarus, Advocate, to institute ELC Appeal Case No. 020 Of 2025 Ruling Page 12

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and prosecute the Appeal. Before the matter could be properly prosecuted, the Advocate became seriously ill and subsequently passed away. Another Advocate from the same firm whose name is not placed on record, thereafter stepped in and lodged the Appeal, but did not continue handling the matter. The Applicant maintains that she genuinely believed that the Appeal was being prosecuted and only subsequently discovered that it had been dismissed for non-compliance. 43. At the face of it, the delay is inordinate as the judgement was delivered in 26th September 2024 and the said Appeal herein was filed on 8th May 2025 which was later dismissed and an application for reinstatement was later filed on 5 th March 2026 herein. It is worth noting that the dismissed appeal was filed outside the time prescribed by the law under section 79G of the Civil Procedure Act hence was incompetent. 44. Therefore, no reasonable explanation herein was offered for the second limb of the delay herein. Further, reopening an incompetent appeal after almost 220 days be an exercise in futility and would deny the 1 st Respondent herein the fruits of his judgment and amounts to an abuse of the Court process. 45. Accordingly, I decline the order for the reinstatement of the dismissed appeal herein. iii. Whether the Applicant has satisfied the threshold for the grant of the orders sought; 46. The Applicant herein seeks several consequential orders to be granted in the said Application dated 5th March, 2026; that this ELC Appeal Case No. 020 Of 2025 Ruling Page 13

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Honourable Court be pleased to set aside the order dismissing Appeal No. E020 of 2025 for non-compliance and reinstate the appeal for hearing on merits; that the delay in complying with the Court direction and in bringing this application be enlarged and condoned; That the firm of M/s Kipchenger & Company Advocates be granted leave to come on record for the Appellant in place of M/s Tarus & Company Advocates; that pending the hearing and determination of this, application inter parties, there be a stay of execution of the judgement/ decree delivered on 26th September 2024 in Eldoret MCELC E074 of 2021; That the Appellant be granted leave to comply with any outstanding directions within such time as the Court shall direct. 47. Having found that the Applicant has not satisfied the threshold for reinstatement of the Appeal, the consequential prayers cannot be sustained. iv. Who shall bear the costs of this Application? 48. On the question of costs, it is now settled that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21), which equally vests this court with discretion on whether or not to award costs. Therefore, a successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. Orders: 49. The upshot is that the Applicant/ Appellant Notice of Motion Application dated 5th March is hereby s devoid of merit and incompetent. 50. Accordingly, the following orders are issued herein; ELC Appeal Case No. 020 Of 2025 Ruling Page 14

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a) The Notice of Motion dated 5th March 2026 is hereby dismissed. b) The order for reinstatement of Appeal No. E020 of 2025 for non-compliance is hereby dismissed c) All consequential orders herein are declined. d) Costs of the application are awarded to the 1 st Respondent. 51. Orders accordingly. DATED, SIGNED and DELIVERED virtually at ELDORET on this 1st day of OCTOBER, 2026 vide Microsoft Teams. HON. C. K. YANO ELC, JUDGE In the virtual presence of: Mr. Mukhabani for Respondent. Ms. Tallam for Appellant. Court Assistant - Laban. ELC Appeal Case No. 020 Of 2025 Ruling Page 15

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