1. The subject matter of this ruling is the motion dated 15/7/2025 in which the Petitioners/Applicants sought for the following Orders:-
(i) THAT the application be certified as urgent, and service be dispensed with in the first instance.
(ii) THAT the Honourable Court be pleased to grant leave to the applicant to file an appeal out of time against he ruling delivered on 3/11/2024 in Succession Cause No.E268 of 2021 at Kericho.
(iii) THAT pending the hearing and determination of this application, there be a stay of execution of the orders issued pursuant to the Ruling delivered on 3/11/2024, including the Grant arising therefrom, and all consequential instructions communicated to the Land Registrar for purposes of distributing the estate and implementing the said Grant.
(iv) THAT pending the hearing and determination of the intended appeal, thee be a stay of execution of the orders issued pursuant to the ruling delivered on 3/11/2024, including the Grant arising therefrom, and all consequential instructions communicated to the Land Registrar for purposes of distributing the estate and implementing the said Grant.
(v) THAT upon grant of leave, the annexed Memorandum of appeal be deemed as duly filed and properly on record upon payment of the requisite Court Fees.
(vi) THAT the costs of this application be provided for.
2. The 2 nd Petitioner/Applicant swore an affidavit filed in support of the motion. The Respondent did not deem it fit to file a response to the motion. However, both sides filed his or her written submissions.
3. I have considered the grounds set out on the motion plus the facts deponed in the supporting affidavit and the rival written submissions. The applicants have stated that the ruling delivered on 3 rd November, 2024 was delivered without notice being given to the applicants nor their advocates and they only came to learn of the same when they were served with a mention notice.
4. The applicants averred that unless they are given an order for stay of execution, they will suffer substantial loss and may run the risk of being disposed of property forming part of the estate and potential irreversible transfers to third parties. It is also argued that the intended appeal has high chances of success. It is pointed out that the deceased’s widow was excluded from the distribution of the estate.
5. The Respondent on the other hand opposed the application arguing that the applicant is not a beneficiary to the estate of the deceased under Section 35 of the Law of Succession Act. The respondent pointed out that this succession cause is in respect of the estate of Tapkigen W/O Chebet and not Kimutai Arap Sang.
6. The respondent averred that Tapkigen W/O Chebet had two sons being Muzee Arap Marindany (1 st Applicant) herein and Kimutai Arap Sang (Deceased), the Respondent’s father. It is stated that Hellen Cheruto Sang, the 2 nd Applicant herein is a widow of Kimutai Arap Sang and that she has since remarried following the death of Kimutai Arap Sang. The respondent further pointed out that the instant application was filed after an inordinate and unexplained delay of a year from date the ruling sought to be challenged was delivered.
7. Having considered the material placed before this Court, it is apparent that applicant is basically seeking for two main orders. First is an order for leave to appeal out of time. The provisio to Section 79G of the Civil Procedure Act expressly provides that an appeal may be admitted out of time if the appellant satisfies the Court that he had good and sufficient cause for not filing the appeal in time. In the instant application, the applicant avers that she and her advocate were not informed of the date of ruling and only came to know of the delivery of ruling when they were served with a mention notice for 16 th July, 2025.
8. The Respondent pointed out that the ruling captured that advocates for both parties were present at the time of delivery of ruling that is on 3 rd November, 2024. This Court has been beseeched to find that the delay is inordinate.
9. I have perused the ruling annexed to the affidavit of Hellen Cheruto Sang and it is clear that the ruling was delivered on 3 rd November, 2024 in the presence of Sang, the Applicant’s Advocate. It is therefore not true that the applicant had no notice of the date of ruling. The Applicant waited until 15 th July, 2025, a period of over 9 months before filing the instant application. I agree with the Respondent’s assertion that the delay is inordinate.
10. In an application for leave to appeal out of time, an applicant must provide good reasons and show sufficient cause. It is obvious that the applicant has not given good and sufficient reasons why she did not appeal within the statutory period of 30 days.
11. As regard to the application for stay of execution, the law requires that an applicant must show the substantial loss he would suffer if the order for stay is denied. An applicant must also show that the application was filed without unreasonable delay.
12. It has already been shown that the applicant took 9 months from the date of ruling before filing the application for stay. This Court declines to grant the order for stay because the application was filed after an unreasonable delay.
13. In the end, the application dated 15 th July, 2025 is found to be without merit. It is dismissed. Each party to meet their own costs.
Dated, signed and delivered at Kericho this 3 rd day of December, 2025.
.……………………………
J. K. SERGON
JUDGE
In the Presence of :-
C/Assistant – Rutoh
Miss Cherono holding brief for O. Lang’at for Respondent
No Appearance for Sang for the Applicant
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(i) THAT the application be certified as urgent, and service be dispensed with in the first instance.
(ii) THAT the Honourable Court be pleased to grant leave to the applicant to file an appeal out of time against he ruling delivered on 3/11/2024 in Succession Cause No.E268 of 2021 at Kericho.
(iii) THAT pending the hearing and determination of this application, there be a stay of execution of the orders issued pursuant to the Ruling delivered on 3/11/2024, including the Grant arising therefrom, and all consequential instructions communicated to the Land Registrar for purposes of distributing the estate and implementing the said Grant.
(iv) THAT pending the hearing and determination of the intended appeal, thee be a stay of execution of the orders issued pursuant to the ruling delivered on 3/11/2024, including the Grant arising therefrom, and all consequential instructions communicated to the Land Registrar for purposes of distributing the estate and implementing the said Grant.
(v) THAT upon grant of leave, the annexed Memorandum of appeal be deemed as duly filed and properly on record upon payment of the requisite Court Fees.
(vi) THAT the costs of this application be provided for.
2. The 2 nd Petitioner/Applicant swore an affidavit filed in support of the motion. The Respondent did not deem it fit to file a response to the motion. However, both sides filed his or her written submissions.
3. I have considered the grounds set out on the motion plus the facts deponed in the supporting affidavit and the rival written submissions. The applicants have stated that the ruling delivered on 3 rd November, 2024 was delivered without notice being given to the applicants nor their advocates and they only came to learn of the same when they were served with a mention notice.
4. The applicants averred that unless they are given an order for stay of execution, they will suffer substantial loss and may run the risk of being disposed of property forming part of the estate and potential irreversible transfers to third parties. It is also argued that the intended appeal has high chances of success. It is pointed out that the deceased’s widow was excluded from the distribution of the estate.
5. The Respondent on the other hand opposed the application arguing that the applicant is not a beneficiary to the estate of the deceased under Section 35 of the Law of Succession Act. The respondent pointed out that this succession cause is in respect of the estate of Tapkigen W/O Chebet and not Kimutai Arap Sang.
6. The respondent averred that Tapkigen W/O Chebet had two sons being Muzee Arap Marindany (1 st Applicant) herein and Kimutai Arap Sang (Deceased), the Respondent’s father. It is stated that Hellen Cheruto Sang, the 2 nd Applicant herein is a widow of Kimutai Arap Sang and that she has since remarried following the death of Kimutai Arap Sang. The respondent further pointed out that the instant application was filed after an inordinate and unexplained delay of a year from date the ruling sought to be challenged was delivered.
7. Having considered the material placed before this Court, it is apparent that applicant is basically seeking for two main orders. First is an order for leave to appeal out of time. The provisio to Section 79G of the Civil Procedure Act expressly provides that an appeal may be admitted out of time if the appellant satisfies the Court that he had good and sufficient cause for not filing the appeal in time. In the instant application, the applicant avers that she and her advocate were not informed of the date of ruling and only came to know of the delivery of ruling when they were served with a mention notice for 16 th July, 2025.
8. The Respondent pointed out that the ruling captured that advocates for both parties were present at the time of delivery of ruling that is on 3 rd November, 2024. This Court has been beseeched to find that the delay is inordinate.
9. I have perused the ruling annexed to the affidavit of Hellen Cheruto Sang and it is clear that the ruling was delivered on 3 rd November, 2024 in the presence of Sang, the Applicant’s Advocate. It is therefore not true that the applicant had no notice of the date of ruling. The Applicant waited until 15 th July, 2025, a period of over 9 months before filing the instant application. I agree with the Respondent’s assertion that the delay is inordinate.
10. In an application for leave to appeal out of time, an applicant must provide good reasons and show sufficient cause. It is obvious that the applicant has not given good and sufficient reasons why she did not appeal within the statutory period of 30 days.
11. As regard to the application for stay of execution, the law requires that an applicant must show the substantial loss he would suffer if the order for stay is denied. An applicant must also show that the application was filed without unreasonable delay.
12. It has already been shown that the applicant took 9 months from the date of ruling before filing the application for stay. This Court declines to grant the order for stay because the application was filed after an unreasonable delay.
13. In the end, the application dated 15 th July, 2025 is found to be without merit. It is dismissed. Each party to meet their own costs.
Dated, signed and delivered at Kericho this 3 rd day of December, 2025.
.……………………………
J. K. SERGON
JUDGE
In the Presence of :-
C/Assistant – Rutoh
Miss Cherono holding brief for O. Lang’at for Respondent
No Appearance for Sang for the Applicant
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