Chesang & 5 others v Koech & 2 others (Civil Appeal (Application) E054 of 2024) [2025] KECA 550 (KLR)
The bottom line
#Kenya's Court of Appeal refused beneficiaries extra time to appeal a succession ruling because they explained neither their absence from the case nor why they wouldn't join an existing appeal.
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 applicants, who were not parties before the High Court, have locus to apply for extension of time to appeal
- 2.Whether the applicants have made out a case for extension of time under rule 4 of the Court of Appeal Rules
Key legal issues
#Locus of non-parties to apply for extension of time to appeal
A non-party may bring an application to appeal because rule 77(1) refers to a 'person' desiring to appeal, not a 'party'; but such a person must be an aggrieved person who has suffered a legal grievance
The court compared rule 77(1) and rule 79 of the Court of Appeal Rules, both of which use 'person' or 'intended appellant' rather than 'party', and held the wording deliberate - designed to allow persons omitted from or unaware of the trial proceedings to challenge decisions. It adopted the Ugandan definition of an aggrieved person as one who suffers a legal grievance because the judgment is against him or affects his interest. However, the applicants failed to explain their omission from the High Court proceedings or their interest.
Whether extension of time should be granted
Extension of time refused because the applicants failed to lay the necessary basis - they did not disclose why they were not parties before the High Court, and an existing appeal may afford them the remedy of joinder
Applying the settled rule 4 principles (period and reasons for delay, arguability, prejudice) as restated in Fakir Mohamed and Leo Sila Mutiso, and the Salat principles that extension is an equitable remedy requiring a laid basis, the court found the applicants had not explained why they were omitted from the proceedings, nor why they sought a fresh appeal instead of seeking to be joined to the existing appeal.
Legal principles established
#- Rule 77(1) of the Court of Appeal Rules uses the word 'person' rather than 'party', deliberately permitting persons aggrieved by a decision of the lower court, including those omitted from the proceedings below, to appeal
- An aggrieved person is one who has suffered a legal grievance - one against whom the judgment is given or whose interest it affects
- Technical objections to the manner in which an application is drafted should not be upheld so as to drive a party from the seat of justice
- The rule 4 discretion is unfettered but must be exercised on reasons, considering the length of and reasons for delay, arguability of the intended appeal, and prejudice to the respondent - a non-exhaustive list
Court orders
#- 1.The applicants' Notice of Motion dated 11th April 2024 is dismissed
- 2.No order as to costs, this being a succession matter involving the family
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Kericho
- High Court Succession No. 86 of 2014 (related)
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rule 4 of the Court of Appeal Rules
Relief refused
#Extension of time to appeal against the judgment of the High Court (Kericho) delivered on 14th December 2023
The applicants failed to place before the court the necessary material to enable exercise of discretion in their favour, including reasons for their omission from the High Court proceedings; they may instead seek joinder to the existing appeal
Striking out sought implicitly on the applicants' intended appeal
Respondents urged dismissal of the application and striking out of the Notice of Appeal and Memorandum of Appeal
Costs
Application dismissed with no order as to costs, this being a succession matter involving the family
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.
In my view the use of the word “person” as opposed to “party” is deliberate.
extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court
I accordingly dismiss the application but with no order as to costs, this being a succession matter involving the family
It is so ordered.
Issues in the judgment
#Case title and case number are not stated in the judgment text; the title used is reconstructed from the content
Judgment contains typographical errors ('age and error' for 'age and era'; 'afiected/sufiered' for 'affected/suffered') reproduced verbatim in quotations
The judgment refers to the Salat case with slightly differing names ('Nicholas Kiptoo Arap Salat' as cited by respondents and 'Nicholas Kiptoo Arap Korir Salat' as cited by the court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chesang & 5 others v Koech & 2 others (Civil Appeal (Application) E054 of 2024) [2025] KECA 550 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/550/eng@2025-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.