https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7243

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **SUCCESSION CAUSE NO. 137 OF 2024** **IN THE MATTER OF THE ESTATE OF THE LATE** **SAMSON KIGEN KANDIE (DECEASED)** **ROGERS LAGAT………………………………………………..……….1ST PETITIONER** **COLLINS KIBET KANDIE…………………………………………….2ND PETITIONER** **KELVIN KIPCHUMBA KIGEN……………………………………….3RD PETITIONER** **VIENA JEPCHIRCHIR………….………………………………….….4TH PETITIONER** **AND** **ROSE CHEPKEMOI ROTICH………………………..…….OBJECTOR/APPLICANT** **Coram: Before Justice R. Nyakundi** **Annassi Momanyi & Co. Advocates** **C F Otieno & Co. Advocates** **RULING** **Background** 1. On 2nd December 2024, the Petitioners Rogers Lagat, Collins Kibet Kandie, Kelvin Kipchumba Kigen and Vienna Jepchirchir petitioned for grant of letters of administration intestate in the matter of the estate of Samson Kigen Kandie. The petitioners having complied with the necessary procedure protocols and the petitioned subsequently gazetted on 7th February 2025 by the Government Printer this court was moved to issue grant of letters of administration intestate dated 10th March 2025. The expectation of the court was that the administrators were to file summons for confirmation of grant to distribute the estate to the beneficiaries. 2. In a further affidavit filed in court on 6th August 2025, the legitimate beneficiaries were identified to include the following: 3. Rose Chepkemoi Rotich –widow 4. Rogers Lagat – son 5. Collins Kibet Kandie – Son 6. Kelvin Kipchumba – son 7. Viena Jepchirchir – daughter 8. Graig Kimurgor – son 9. This identification of beneficiaries was in addition followed with by the inventory of properties survived of the deceased together with liabilities as herein indicated: 10. *Eldoret Municipality/Block 14/952* 11. *Eldoret Municipality/Block 14/52* 12. *Eldoret Municipality/Block 14/703* 13. *Eldoret Municipality/Block 13/848* 14. *Tarakwa/Languise Block 2(Koiluget)/328* 15. *Kapsundei/Plot No. 104* 16. *Marigat Plot No. 410B* 17. *Toyota Land Cruiser –KAH 112N* 18. *Toyota Prado –KBP 177H* 19. *A/C Stanbic Bank Eldoret Branch – 0100006730773* 20. *A/C Stanbic Bank Eldoret Branch – 0100003216076* 21. *A/C Absa Eldoret Branch – 0034223416* The liabilities to the estate are: 1. *Cooperative Bank Loan-Approx. Kshs. 4,400,000/- (Kshs. 800,000/-has so far been paid after death and will continue to be paid till completion in stages)* 2. *Uniters Loan-Approx. Kshs. 1,300, 000/- (Kshs. 300,000/- has been paid after death and will continue to be paid till completion. This debt arose as a result of a Guarantee signed by the deceased and affects one of the assets of the deceased)* 3. *KCB Loan-Approx Unknown (Information from the Bank reveals that this loan was paid off by the Insurers and the books are closed. Written confirmation is awaited from the Bank*) 4. In the same affidavit the petitioners had apparently registered Kandie Holding Limited with the Registrar of companies to be the carrier institution in the distribution of the estate. In the same cause one Rose Chepkemoi Rotich filed an affidavit with the following details: 5. *Notice of the application for the said grant was published on 7th February 2025 I have lodged in the registry at Eldoret on 3rd day of September 2025 an objection to the application* 6. *That having been required to file this answer to the said application I say that such application should be dismissed for the reason that l as widow has been left out and my consent was never sought before the application was made* 7. *Besides being a widow, I claim a beneficial interest as a co-owner of the matrimonial property and my interest as co-owner ought to be separated from the estate of the deceased* 8. *That I am also a beneficiary by dint of being a widow of the deceased* 9. *That I only learned of the proceedings in late August 2025 when the application for grant and confirmation was brought to me by my sons and daughter in prison where l am held* 10. *That personally contributed towards the acquisition of the matrimonial properties and their development.* 11. *That I intended to file contemporaneously with the filing of his answer a petition to this court by way of cross application for a grant of representation to the estate of the deceased to be made to me copy of which is annexed hereto* 12. Before this court is a summons for enlargement of time to file an objection, cross petition and answers to petition outside the requisite time dated 3rd day of September 2025. The application seeks the following orders: 13. *The honourable court do enlarge time for the Applicant to file an objection, cross petition and answer to petition outside the requisite time* 14. *Costs of the summons be in the cause* 15. Which application is grounded on the affidavit of Rose Chepkemoi Rotich and the following grounds:- 16. *The petition was filed without the objector's/Applicant's consent being sought* 17. *The objector/Applicant is a widow of the deceased* 18. *The objector/Applicant has a stake in the matrimonial property to which she contributed towards acquisition and the developments thereon* 19. *The objector/Applicant only became aware of the petition in late August 2025 when copy of the application for confirmation and issuance of grant was presented to the Applicant in prison where she is being held, by her sons and daughter* 20. *The Applicant was unaware of the petition till August 2025f) The ends of justice* 21. *There is no prejudice the petitioners stand to suffer if the application is granted* 22. In support if the application is the affidavit of Rose Chepkemoi Rotich who deponed as follows: 23. *That I am the widow of the deceased and I am competent to swear this affidavit.* 24. *That as widow of the deceased I rank equally with the petitioners and ought to have been consulted before the petition was filed* 25. *That my consent was not sought before the petition was filed* 26. *That I was unaware of the petition till late August 2025 when my sons and daughter brought me a copy of the application for confirmation of the grant and the issuance of a grant of representation* 27. *That had I been aware of the petition I will have filed the objection cross application/petition and answer to petition* 28. *That I seek enlargement of time to enable me pursue my objection cross petition and answer to the petition outside the requisite time* 29. *That the petitioners will not be in anyway be prejudiced if my application is allowed* 30. *That besides being a widow of the deceased I also claim the estate as co-owner of the matrimonial property whose acquisition and development I contributed towards.* 31. *That I attach herewith copy of the cross petition, objection and answer to petition and have them marked RCR 1, 2 and 3* 32. *That I swear this affidavit* *in support of the application seeking the prayers aforestated.* **Decision** 1. It is from this foundational of facts as alluded to by the parties, the court considered the issues in terms of Sections 1A, 1B, 3 & 3A of the CPA as read with Section 47 of the Succession Act and Rules 67 & 73(1) of the Probate and Administration Rules. There are various decided cases by the High Court, the Court of Appeal and the Supreme Court of Kenya regarding the enlargement of time to file petitions, appeals, or written statement which emphasizes that delay can be condoned under the law if sufficient cause is shown. The courts avail severally that a liberal approach should be adopted to ensure substantial justice provided the delay is not due to gross negligence. The court further emphasized that delay must be explained for the entire period from the expiring of limitation until the actual filing date under a liberal approach should only apply if sufficient cause is established. This means that the Applicant must explain himself/herself what reasons and circumstances occasions the delay to necessitate filing an application to enlarge time to undertake a particular legal steps for one to vindicate his/her rights. 2. It is a well accepted principle statutory recognizes in Order 51 of the CPR that where a period is fixed or granted by the court for doing any act prescribed or allowed by the statute the court it may in its discretion from time to time enlarge such period. Even though the period original fixed to granted has expired. This jurisdiction on enlargement of time can therefore be invoked by a party for the court to reexamine the circumstances upon which the lapse or expiry of time occurred which may necessitate extension of time. In my view it is more to do with securing the ends of justice and prevent abuse of its provisions. 3. Nevertheless, the powers under Order 50 of the CPR for that matter are not intended to be used routinely at the drop of a hat as it irritated on the case of **Rupa Ashok Hurra vs. Ashok Hurra and Another (2002) 4 SCC 388** it was opined inter alia as hereunder; *“69. True, due regard shall have to be had as regards opinion of the Court in Ranga Swamy [(1990) 1 SCC 288] but the situation presently centres around that in the event of there being any manifest injustice would the doctrine of ex debito justitiae be said to be having a role to play in sheer passivity or to rise above the ordinary heights as it preaches that justice is above all. The second alternative seems to be in consonance with time and the present phase of socioeconomic conditions of the society. Manifest injustice is curable in nature rather than incurable and this Court would lose its sanctity and thus would belie the expectations of the founding fathers that justice is above all. There is no manner of doubt that procedural law/procedural justice cannot overreach the concept of justice and in the event an order stands out to create manifest injustice, would the same be allowed to remain in silentio so as to affect the parties perpetually or the concept of justice ought to activate the Court to find a way out to resolve the erroneous approach to the problem?.............In the event there is any affectation o such an administration of justice either by way of infraction of natural justice or an order being passed wholly without jurisdiction or affectation of public confidence as regards the doctrine of integrity in the justice delivery system, technicality ought not to outweigh the course of justice — the same being the true effect of the doctrine of ex debito justitiae. The oft-quoted statement of law of Lord Hewart, C.J. in R. v. Sussex Justices, ex p McCarthy [(1924) 1 KB 256: 1923 All ER Rep 233: 93 LJKB 129] that it is of fundamental importance that justice should not only be done, should manifestly and undoubtedly be seen to be done, had this doctrine underlined and administered therein.* 1. As stated elsewhere the enlargement of extension of time is governed by Section 95 of the CPA and Order 50 Rule 6 of the CPR. The courts have established that this is equitable remedy and not a right is excised at the discretion of the court to ensure justice is served. The guiding principles which can influence the tilt of discretion in favour of the Applicant includes the following: * ***Discretionary Nature:****Extension of time is an equitable remedy granted at the court’s discretion to deserving parties.* * ***Burden of Proof:****The Applicant has the burden of demonstrating why an extension should be granted* * ***Reasonable Explanation for Delay:****The Applicant must provide a reasonable and satisfactory explanation for the delay. Inordinate and unexplained delays are usually rejected.* * ***Prejudice:****The court considers whether the extension will cause undue prejudice to the respondent* * ***Promptness:****The application must be filed without undue delay once the party is aware of the need to take action.* * ***Merits of the Case:****While not always the primary focus, the court may consider whether the Applicant has a plausible case (i.e., that the proposed appeal or action is not frivolous).* * ***Case-to-Case Basis:****Each application is decided on its own specific facts* 1. The Supreme Court in the **Nicholas Kiptoo Arap Salat v IEBC & 7 Others (2014) eKLR** established the foundational of principle for extension of time as herein under set out: 2. *Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;* 3. *A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;* 4. *Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;* 5. *Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;* 6. *Whether there will be any prejudice suffered by the respondents if the extension is granted;* 7. *Whether the application has been brought without undue delay; and* 8. *Whether in certain cases, like election petitions, public interest should be a consideration for extending time.*” 9. In addition of the following court at their various forums have ruled as follows: * ***Tego v Tego Misc CA E005 of 2023 [2024] KEHC (High Court of Kenya):*** *The court confirmed its wide discretion to enlarge time under Section 95 of the Civil Procedure Act and Order 50 Rule 6.* * ***Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR*** *(Cited in)****:*** *Established that there is no maximum or minimum period of delay, but any delay must be satisfactorily explained.* * ***First American Bank of Kenya Ltd vs Gulab P Shah & 2 others [2002] 1EA 56****(Cited in)****:*** *Frequently applied in cases to analyze the reasonableness of the delay.* * ***Caltex Oil (K) Ltd v Rono Civil Appeal/ Application Nairobi No. 97 of 2008*** *(Cited in)****:*** *Discussed that even with a default clause, the court retains the power to extend time until the final disposal of proceedings* 1. It is from this perspective I exercise discretion to enlarge time for the Applicant to file an objection, close petition and answer to petition outside the requisite time provided under our procedural law. The Applicant shall therefore move the court appropriately within 21 days to file a substantive objection and have it served upon the petitioners and the same shall be heard on a priority basis before the appropriate court but the status conference shall be held before the Presiding Judge for directions on the **12th** of **June 2026.** **DATED AND DELIVERED AT ELDORET THIS 26TH DAY OF MAY 2026.** **.............................................** **R. NYAKUNDI** **JUDGE**