Langat v Langat (Civil Application E051 of 2022)  KECA 214 (KLR) (3 March 2023) (Ruling)
Neutral citation:  KECA 214 (KLR)
Republic of Kenya
Civil Application E051 of 2022
F Sichale, FA Ochieng & WK Korir, JJA
March 3, 2023
Josephine Chepngetich Langat
Leah Chebii Langat
(An application for stay of the orders of the High Court pending the hearing and determination of this Appeal from the Ruling and orders of the High Court of Kenya at Kericho (A.N. Ongeri, J.) dated 6th May, 2022 In SUCCESSION CASE No 100 OF 2012 Succession Cause 100 of 2012 )
1.The applicant’s (Josephine Chepngetich Langat’s) notice of motion dated August 24, 2022 seeks the following orders:1.Spent2.That this court be pleased to stay execution of the ruling and order of the High Court of Kenya at Kericho that was granted by Justice AN Ongeri on May 6, 2022 in Kericho High Court Succession Case No 100 of 2012.3.That the costs of this application be provided for.”
2.In the motion, Leah Chebii Langat is named as the respondent.
3.In the supporting affidavit, the applicant deponed that she filed a notice of appeal on July 8, 2021 expressing her desire to appeal against the ruling delivered by Dulu, J on March 12, 2020 in respect of Kericho Succession Cause No 100 of 2012; that subsequently, the respondent filed a notice of motion dated February 3, 2022 whose outcome was delivered on May 6, 2022; that in the said ruling, Ongeri, J distributed the deceased’s land namely, Kericho/Kapsuser/4192 (the suit land) by giving the applicant and the respondent each equal shares of 4.028 acres. The applicant has sought to stay this ruling pending appeal.
4.In her replying affidavit dated September 12, 2022, the respondent contended that the order sought by the applicant was overtaken by events.
5.On November 7, 2022, the motion came up before us for virtual hearing. Mr Waweru, learned counsel for the applicant was present. There was however no appearance on behalf of the respondent inspite of service of the hearing notice on October 18, 2022 upon the firm of Weldon Ngetich & Co Advocates who are on record for the respondent.
6.In urging the motion, the applicant briefly highlighted the appellant’s written submissions dated September 23, 2022. He contended that the applicant has been on the land since the year 1983, and that on the other hand, the respondent has never lived on the suit land.
7.In her written submissions dated September 12, 2022, the respondent reiterated the gist of her replying affidavit of the same date, to the effect that the order sought is overtaken by events.
8.We have considered the motion, the applicant’s written and oral submissions as well as the respondent’s replying affidavit, (containing what would on the face of it, be submissions), as well as her submissions. We have also considered our mandate in light of rule 5(2)(b) of this Court’s Rules.
9.For a start, an application under rule 5(2)(b) is predicated on a notice of appeal intent on challenging a ruling and /or judgment which is sought to be stayed. It is the said notice that vests this court with jurisdiction. Indeed, rule 5(2)(b) was aptly summarized in the case of Stanley Kang’ethe Kinyanjui vs Tony Keter & 5 Others  eKLR as follows:
10.The notice of appeal upon which the applicant’s motion is predicated upon is dated March 31, 2020. In the said notice, the applicant intends to challenge the decision of Dulu, J delivered on March 12, 2020. The motion before us seeks to stay the orders of Ongeri, J delivered on May 6, 2022 wherein she allowed the respondent’s motion of January 24, 2022, seeking, inter alia, an order that security be provispondent and the surveyor for purposes of demarcation and sub-division of the suit land as per the certificate of confirmation of grant issued on February 4, 2014. Indeed, in the applicant’s supporting affidavit dated August 22, 2020, she deponed that she was aggrieved by the ruling of March 12, 2020 and that she filed a notice of appeal dated July 8, 2021 “… making clear to them of our intention to appeal”. There is no notice of appeal in respect of the ruling of Ongeri, J delivered on May 6, 2022. During the virtual hearing, Mr Waweru for the applicant confirmed that he had not filed a notice of appeal in respect of the ruded to the reling of May 6, 2022. The effect of filing a notice of appeal was amplified in the decision of Equity Bank Limited vs West Link MBO Limited,  eKLR wherein Githinji, JA stated:
11.Similarly, in Nguruman Limited vs Shompole Group Ranch & Another, Civil Application NAI 90 OF 2013, Musinga, JA recently held in the lead ruling:
12.In the absence of a notice of appeal against the ruling of Ongeri, J of May 6, 2022, it is our view that we do not have jurisdiction to consider the applicant’s motion. It is hereby dismissed with costs.
Dated & delivered at Nakuru this 3rd day of March, 2023.F. SICHALE………………….…. JUDGE OF APPEALF. OCHIENG………………….…. JUDGE OF APPEALW. KORIR………………….…. JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR