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Court of AppealPartially AllowedNot stated in the ruling· [2026] KECA 1555 (KLR)

Samuel Cheruiyot (suing In His Own Capacity As An Administrator of The Estate of Esther Cheruiyot) & 1 other v Aic Ainabkoi Church & 7 others

Court of Appeal of Kenya
31 July 2026
1,110 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal extended time to appeal a 2022 land ruling but left any request to stop enforcement to a full bench.

What this practically means

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Executive summary

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This is a ruling by a single judge of the Court of Appeal at Eldoret, Nduma Nderi JA, on an omnibus Notice of Motion dated 22nd May 2026. The applicants sought leave to file and serve a Memorandum of Appeal and Record of Appeal out of time against the judgment delivered on 3rd March 2022 in Eldoret ELC Petition No. 22 of 2019, together with stay of execution of that judgment pending the intended appeal. The motion, brought under sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4, 41, 43 and 47 of the Court of Appeal Rules, 2022, was unopposed despite service. The judge first observed that the Court has decried omnibus applications joining prayers whose jurisdiction is variously donated; because stay of execution requires a full bench while extension of time lies within a single judge's competence, he confined the ruling to the extension-of-time prayer and left the applicants at liberty to pursue the stay before the correct forum. Applying Rule 4 and the principles in Nicholas Kiptoo Arap Korir v Independent Electoral and Boundaries Commission, he found the delay excusable: a timely Notice of Appeal and request for typed proceedings demonstrated the intention to appeal; the lapse arose from obtaining proceedings not within the applicants' direct control; the respondents alleged no prejudice; and the draft Memorandum of Appeal was not frivolous. He deemed the Memorandum of Appeal duly lodged upon payment of fees, directed that the Record of Appeal be filed and served within thirty days, and ordered costs of the application to abide the outcome of the appeal.

Key legal issues

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01

Which prayers in an omnibus application may a single judge of the Court of Appeal determine?

Holding

An omnibus application mixing prayers within and beyond a single judge's competence is not entertained wholesale; the single judge determines only the competent prayers (here, extension of time under Rule 4) and directs the applicant to the full bench for the rest.

Reasoning

The judge observed that the Court has repeatedly deprecated omnibus applications joining prayers whose jurisdiction is variously donated, citing Associated Construction Company v Kyamu Construction and Mpaka v Ikiugu. Some orders sought, notably stay of execution, fall within the purview of a full bench, while extension of time under Rule 4 lies within a single judge's competence. In the interest of justice he therefore confined the ruling to the extension-of-time prayer, leaving the applicants at liberty to seek the remaining orders before the correct forum.

p. 2
02

Whether the applicants satisfied the Rule 4 principles for extension of time.

Holding

Extension of time was granted: the delay was excusable because the intention to appeal was evinced timeously and the lapse lay in obtaining proceedings not within the applicants' direct control.

Reasoning

Relying on the Supreme Court's guidance in Nicholas Kiptoo Arap Korir v IEBC, the judge treated extension of time as an equitable remedy available to a deserving party, not a right, weighing the period of delay, the reasons for it and potential prejudice to the respondents. The law prescribes no exact measure of delay; the test is whether it is satisfactorily explained. The applicants filed a Notice of Appeal and requested typed proceedings within the requisite period, and the delay in obtaining the proceedings was not within their direct control, so the lapse was excusable.

p. 3
03

Whether the intended appeal is arguable and whether granting leave would prejudice the respondents.

Holding

The application being unopposed, no prejudice to the respondents was shown and the draft Memorandum of Appeal was not frivolous on its face.

Reasoning

No response had been filed despite service, and nothing advanced suggested the respondents would suffer prejudice if leave were granted. The applicants annexed a draft Memorandum of Appeal whose grounds, on their face, were not frivolous, indicating the intended appeal was arguable. These considerations supported the exercise of discretion in the applicants' favour, with the Record of Appeal to be filed within thirty days so the appeal could be determined on its merits, and costs made to abide the outcome of the appeal.

p. 3

Legal principles established

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  • A single judge of the Court of Appeal will not entertain an omnibus application wholesale where the prayers fall under different jurisdictional heads; the single judge deals only with the prayers within single-judge competence (such as extension of time under Rule 4), and the applicant must pursue the rest, such as stay of execution, before the correct forum.
  • The power to extend time is unfettered but must be exercised judiciously; extension of time is an equitable remedy for a deserving party, assessed on the period of delay, the reasons for it and the potential prejudice to the respondent.
  • There is no fixed measure of an inordinate delay; the operative test is whether the delay has been satisfactorily explained, and a delay occasioned by obtaining proceedings from the trial court, outside the applicant's direct control, is excusable.

Court orders

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  1. 1.The application dated 22nd May 2026 allowed in respect of the extension-of-time prayer only.
  2. 2.The Memorandum of Appeal deemed duly lodged upon payment of requisite fees.
  3. 3.The Record of Appeal to be filed and served within 30 days from the date of the ruling.
  4. 4.Costs of the application to abide the outcome of the appeal.
  5. 5.The applicants left at liberty to apply for the stay of execution and other orders before the correct forum (a full bench).
On appeal from
Environment and Land Court
Eldoret ELC Petition No. 22 of 2019
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4, 41, 43 and 47 of the Court of Appeal Rules, 2022

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, "Samuel Cheruiyot (suing In His Own Capacity As An Administrator of The Estate of Esther Cheruiyot) & 1 other v Aic Ainabkoi Church & 7 others", Case Analysis (2026). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1555/eng@2026-07-31

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