Mosonik v Changwony & another

represented by counsel. We do it routinely and openly in Court when interlocutory applications come up for hearing. 4. This is what we did when the Notice of Motion application dated 10th December, 2025 in which the applicant sought to strike out the Respondents’ notice of appeal on grounds that they had not led their appeal within the period prescribed by the Rules came up on 21st April, 2026. On that day Mr. Kipkoech learned counsel appeared for the Applicant while Mr. Kanyi Ngure learned counsel appeared for the Respondents. He had led a replying adavit in response to the application in which he asserted that he had since led the record of appeal subsequent to the ling of the application to deem the notice of appeal as withdrawn. The record of the proceedings shows that the Court (Presiding Judge) asked Mr. Kipkoech if anything had changed in view of the response led on behalf of the Respondents. Mr. Kipkoech then told us, that from the replying adavit led by Mr. Kanyi Ngure, he realized that a record of appeal had been led namely appeal No.E227 of 2025, which rendered his client’s application moot. He then explained that he led the application before Mr. Kanyi led the record of appeal because they really wanted the appeal to be put on its feet and fast tracked. He said that he would not want to push the application further now that an appeal had been led and was keen on having substantive justice done by having the appeal heard. He said he would abandon the application to focus on the appeal and requested for case management because his client is an old widow. 5. The Court then engaged Mr. Ngure on the same platform. Asked him whether he had done his work in reference to the ling of the record of appeal. He said that he had done his work, and agreed that we can concentrate on the appeal. The Court then made an order marking the application dated 10th December, 2025 as withdrawn with no orders as to costs and gave directions for the expedited disposal of the Respondents’ Civil Appeal No. E227 of 2025. 6. We gave timelines within which the parties were to le written submissions to pave the way for the hearing of the appeal. The directions required the Appellants to le and serve their written submissions within 14 days, upon which the Respondent would le and serve her written submissions within 14 days of being served with the Appellants written submissions. After that the appeal was to be listed for hearing on a priority basis. 7. We routinely give these kind of directions to facilitate the timely disposal of appeals especially in situations where there are interim orders of injunction or stay of execution or maintenance of status quo and where parties have like in the instant case cooperated and agreed to abandon an interlocutory application in favor of a fast tracked merit hearing of the main appeal. The directions were made in the presence of the parties’ advocates during the virtual hearing on 21st April, 2026. None of them said he needed more time to le written submissions. And we thought that we had safely shepherded and refocused the parties to prepare for hearing of the appeal on the merits. 8. But we were mistaken. The Appellants did not comply with the directions requiring them to le and serve written submissions within 14 days from 21st April, 2026 or at all. In a strange turn of events the Appellants quite inexplicably led a Notice of motion application dated 5th May, 2026 under certicate of urgency. They seek to have the orders made on 21st April, 2026 varied or rescinded. Not the entire order but only that portion directing that submissions be led and the hearing of the appeal expedited. 9. They have brought the application dated 5th May 2026, within the withdrawn application that sought to strike out their appeal and say they are disgruntled by the direction for expedited hearing of their own appeal. 10. The application is opposed by the Respondent principally on the grounds that the appellants’ counsel actively participated in the proceedings leading to the making of the order for expedited hearing of https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1770/eng@2026-09-25 2

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the appeal. That the Appellants having actively consented and beneted from part of the order they are now estopped in law and equity from resiling from the same order. That the Respondent is an elderly widow and the Applicants have been in possession of LR NO. Nakuru/Lengenet/792 the only substantive asset forming part of the estate of Andrew Kiprotich Chepkwony, her late husband. 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. That the impugned order was not made arbitrarily and was made based on the arguments presented to Court before the order was made. 11. We heard the application on 8th June,2026 when both Mr. Kanyi Ngure and Mr Kipkoech made oral submissions for and against the application respectively. 12. We have considered the grounds of the application, the supporting adavits, the replying adavit and the rival submissions. The applicants invoke the review jurisdiction of this court under rule 59(2) of the Court of Appeal Rules 2022. 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 rule provides for variation or rescission of an order on application of any person aected thereby in two situations only namely if: (a) the order was one extending the time for doing any act, otherwise than to a specic date; or (b) the order was one permitting the doing of some act, without specifying the date by which the act was to be done, and the person on whose application the order was made has failed to show reasonable diligence in the matter. 13. None of the two scenarios exist in the present application. The order issued by the Court on 21st April, 2026 was in two parts. The rst marked the application dated 10th December, 2025 as withdrawn with no orders as to costs. The second part involved issuance of directions giving specic timelines for ling of submissions in the main appeal to facilitate the timely disposal of Civil Appeal NO. 227 of 2025. Clearly the order complained of did not extend time for doing any act without specifying the time for doing so neither did it permit the doing of act without specifying the time for doing it. It follows that the Application does not meet the prerequisite for review under Rule 59(2) of the Court of Appeal Rules and we would dismiss it on that account alone without having to consider the substance of the application. 14. But we have also considered the substance of the application. So what is the substance of the Applicants grievance before us in the in the instant application? They say that the order of 21st April, 2026 is couched to appear as if it was made by consent of the parties whereas no consensus was reached on expediting the appeal. So they are only unhappy with that part of the order directing the ling of submissions within 14 days to pave the way for hearing of their appeal, but are quite happy with the preceding part of the order marking the application dated 10th December, 2025 as withdrawn with no orders as to costs. 15. Essentially they do not want their appeal to be heard expeditiously and say that their appeal should be allowed to follow the proper channel to await its place in the queue of appeals in accordance with the principle of rst in rst out enunciated in the practice directions. That unless the orders of 21st April 2026 are urgently rescinded an injustice might be visited upon the larger court users fraternity including the applicants and the principle of equality before the eyes of the law will not be seen to have prevailed. 16. On the face of it, the argument appears altruistic but it is just appearance. The Appellants are enjoying orders of status quo which protects their possession of LR Nakuru /Lengenet /792 and are quite happy to allow the appeal to drift. That is their reason for resisting the part of the order that would pave the way for the hearing of their own appeal. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1770/eng@2026-09-25 3

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17. Before we made those directions; we were told that the Appellants were tiptoeing around and were not keen on having the appeal heard. That though the typed proceedings were ready and available by 1ST July, 2025, the applicants did not le the record of appeal until the Respondent led the application dated 10th December, 2025. We think that the present application lends credence to the Respondent’s apprehension that the Applicants are not keen to be heard on the appeal. 18. The directions that the Applicants complain of are lawful directions given by this Court in exercise of its duty of ensuring timely disposal of appeals which is our core constitutional mandate and in furtherance of the overriding objective of the Appellate jurisdiction Act and the rules made there under. That objective is to facilitate the just, expeditious, proportionate and aordable resolution of the appeals governed by the Act. We merely did our duty in accordance with the constitution and the law. We therefore nd no merits in the subject application and dismiss it with costs to be borne directly by the Applicants’ counsel whom we nd bears the greatest responsibility for noncompliance with this Court’s directions of 21st April, 2026. 19. In accordance with Section 3 A [3] of the Appellate Jurisdiction Act, the Applicants’ advocate was and continues to be under a positive statutory duty to assist this Court to further the overriding objective. In particular to ensure compliance with the directions and orders of the Court issued on 21st April, 2026. Instead of doing his duty to Court he advised his clients to resist lawful orders and directions of this court. He led the instant application whose eect has been to delay the hearing of their own appeal. 20. To make matters worse he cast aspersions and imputed ill motive on both the court and opposite counsel without any regard for the truth and the record of the proceedings of the Court. He insinuated that one of our number, the presiding Judge had spoken to the opposing counsel outside these proceedings without any reasonable justication for saying so and persisted in that course even when it was clear that there was no factual basis for his contention. 21. Notably, the conversation between the court and both parties took place in court and it was audio recorded. Counsel picked a sentence in the transcript totally disregarding the context and particularly the preceding conversation gave it an illogical interpretation to suit his assertion. He would not recant his most improper and dishonorable imputation. He casually said anything is possible in this country even when his fellow learned colleague informed him that he had not met or spoken to the presiding judge outside these proceedings. We did not nd such conduct by a seasoned member of the bar of the calibre of Mr. Kanyi Ngure dignied or honorable. We deprecate it and discourage it by directing that he personally settles the costs of the application dated 5th May,2026. And to bring back Civil Appeal No. 227 of 2025 back on track we make the following further directions: a. The Appellants shall comply with the directions given by this Court on 21st April, 2026 i.e le and serve written submissions within 14 days from the date of this ruling. b. The Respondent shall le and serve written submissions within 14 days of being served with the Appellants submissions in accordance with (b) above. c. If the parties comply the appeal be xed for hearing on a priority basis as earlier directed. d. If any party does not comply with the above directions, the other party shall be a liberty to apply to the Court for appropriate orders. DATED AND DELIVERED AT NAKURU THIS 25TH DAY OF SEPTEMBER, 2026. J. MATIVO https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1770/eng@2026-09-25 4

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JUDGE OF APPEAL .................................... MURUNGI B. KAIRARIA JUDGE OF APPEAL .................................... AHMED ISSACK JUDGE OF APPEAL I certify that this is a True copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1770/eng@2026-09-25 5

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