Mosonik v Changwony & another
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application meets the prerequisites for review under rule 59(2) of the Court of Appeal Rules 2022
- 2.Whether the directions of 21st April 2026 for expedited hearing of the appeal should be varied or rescinded
Key legal issues
#Whether the application satisfied rule 59(2) prerequisites for review
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
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 The impugned order had two parts: marking the earlier application withdrawn with no orders as to costs, and giving specific timelines for filing submissions.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.
Whether the directions for expedited hearing were lawful and should stand
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
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.
Legal principles established
#- 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
#- 1.Application dated 5th May 2026 dismissed with costs to be borne personally by the Applicants' counsel
- 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.Respondent to file and serve written submissions within 14 days of being served with the Appellants' submissions
- 4.If the parties comply, the appeal to be fixed for hearing on a priority basis
- 5.If any party does not comply, the other party is at liberty to apply to the Court for appropriate orders
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
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
#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.
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.
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.
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.
Issues in the judgment
#Application filed within an already withdrawn application was entertained and determined without comment on propriety
Bench names appear inconsistently between heading, coram and signature block
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.