https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12958

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **SUCCESSION CAUSE NO. 184 OF 2004** **IN THE MATTER OF THE ESTATE OF KWIRIGA NKARICHIA (DECEASED)** **BEATRICE KATHAMBI GATEMBO--------------------------1ST PETITIONER/RESPONDENT** **PHYLIS RIGIRI MUTHAMIA--------------------------------2ND PETITIONER/RESPONDENT** **VERSUS** **PAUL MWIRIGI M’KWIRIGA----------------------------------RESPONDENT/APPLICANT** **RULING** 1. This matter comes up for ruling of the applicant’s Notice of Motion application dated 4/7/2025 which seeks the following orders; 2. Spent. 3. That the applicant herein be granted leave to file a Notice of Appeal and record of appeal out of time. 4. That the notice of appeal and the memorandum of appeal already filed be deemed as duly filed and properly filed. 5. That this honorable court be pleased to grant a stay of execution of the ruling delivered by this honorable court on the 5/08/2022 in Succession Cause No. 184 of 2004 pending the hearing and determination of the appeal. 6. That the costs of this application be provided for. 7. The application is anchored on the grounds set out on the face of the application and the applicant’s supporting affidavit sworn on even date. 8. The gist of the application is that the applicant is aggrieved by the ruling of the court which was delivered on the 5/08/2022 and seeks to appeal against it in the Court of Appeal. 9. The applicant contends that subsequent to the delivery of the said ruling, he filed a Notice of Appeal through his former advocate on the 18/08/2022 and that was within the prescribed timelines. 10. He further contends that he gave instructions to his former advocate to file the record of appeal but due to his incompetence, the same did not materialize. For that reason, the applicant contends that he personally applied for certified copies of proceedings and ruling on the 8/08/2023 and collected them on 6/12/2023, after which he instructed a new advocate who filed the record of appeal on 2.05/2024 in Civil Appeal No. 148 of 2024 without unreasonable delay. 11. For the aforementioned reasons, the applicant contends that the delay in filing the appeal was neither deliberate nor inordinate. 12. He further contends that he has brought this application because the Appeal initially filed at the Court of Appeal was dismissed for want of leave to file it out of time. He urges this court to grant him the orders sought on account of the imminent risk of eviction he is facing from the respondents. 13. The application is countered by the Notice of Preliminary Objection dated 30/10/2025 by the 1st and 2nd Interested Parties. 14. The basis of the objection is that the application offends Section(sic) 4 of the Court of Appeal Rules 2010. That this court lacks the jurisdiction to entertain the instant application. 15. For this reason, the interested parties pray that the application be struck out. 16. Submissions were filed by the applicant and the interested parties. 17. Having considered the application, the notice of preliminary objection and the submissions filed, this court finds the following issues for determination; 18. Whether the Notice of Preliminary Objection is merited. 19. Whether the prayers sought in the application should issue. 20. Needless to state, if the court is to find the objection to be merited, then there will be no need to consider the second issued. 21. I will not address the issue of the necessity for leave to appeal as that has been determined by the Supreme Court **in Wandi v Muchira (Suing as the Administrator Ad Litem of Jane Muthoni Muchira) [2026] KESC 29 (KLR).** The applicant has correctly cited the same. 22. The interested parties contend that the instant application offends Rule 4 of the Court of Appeal Rules 2010. It is argued that an order for extension of time to lodge a notice of appeal and memorandum of appeal at the Court of Appeal can only be granted by that court and not the High Court. They further contend that the application has been brought under Section 79G of the Civil Procedure Act which only applies to appeals from subordinate courts to the High Court. 23. Rule 4 of the Court of Appeal Rules provide as follows; **“The Court may, on such terms as may be just, by order, extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.”** 1. On the other hand, Section 7 of the Appellate Jurisdiction Act provides as follows; **“The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired”** 1. From the above quoted provisions of the law, it is apparent that the High Court is vested with the requisite powers to grant an order of extension of time to lodge a Notice of Appeal to the Court of Appeal. 2. The court in **Loise Chemutai Ngurule & another v Wilfred Leshwari Kimung’en & 2 others [2015] KEELC 447 (KLR),** held as follows in regards to this issue; **“It will be seen from the above that Section 7 is explicit, that the High Court (which now in light of the Constitution of Kenya, 2010 needs to be construed as also including the Environment and Land Court and the Industrial Court), may extend time for giving notice of intention to appeal from a judgment of the High Court. The intention to appeal is the Notice of Appeal. I think Section 7 does not need any more than a literal interpretation. Jurisdiction is clearly conferred to the High Court to extend time for the filing of a Notice of Appeal. To decide otherwise is akin to completely disregarding, what in my view, is a clear provision in the law.** **Neither am I of the view that there is any conflict between the above provision and the provisions in the Court of Appeal Rules. Rule 4 of the Court of Appeal Rules also gives the Court of Appeal power to extend time, but it does not say that it is the Court of Appeal with exclusive power, in so far as the filing of a Notice of Appeal is concerned.”** 1. Rule 4 of the Court of Appeal Rules also gives the Court of Appeal the jurisdiction to entertain that application. 2. Therefore, in so far as a Notice of Appeal is concerned, an applicant may move the High Court or the Court of Appeal to extend time. 3. That said, it is noted the applicant was categorical that he filed the Notice of Appeal on time. It is his appeal that was struck out by the Court of Appeal, for being filed out of time and without leave. 4. It is clear from the authorities cited by the parties that this court’s jurisdiction is only in reference to extension of time to file a notice of appeal. Once that notice of appeal was filed on time, this court ceased to have jurisdiction in the matter. 5. In this respect, I agree with the decision in **N’ganya & 2 others (Suing on Their Behalf and on Behalf of 29 others) v Mukabana (Sued as the Administrator of the Estate of Peter Keya - Were -Deceased) & 6 others; Authority (Nema (Interested Party) [2026] KEELC 1056 (KLR)** which cited the decision in **Trimborn Agricultural Engineering Limited vs David Njoroge Kabaiko and Another (2000) eKLR.** In this case, the Court of Appeal held as follows: “**The powers of the superior court to enlarge the time for lodging a notice of appeal out of time have been well defined by now. This Court in a recent decision delivered in the case of Peter Njoroge Mairo vs Francis Gicharu Kariri & another, Civil Appeal (Application) No 186 of 1999, (unreported), said:** “**In our view section 7, above, should be given a construction which would obviate ridiculous result. The intention of the Legislature in enacting section 7, above, clearly appears to us to be that it can only be used and more specifically the very first time the intending appellant manifests his intention to appeal. It is for this reason that we agree with the remarks of Bosire Ag, JA (as he then was) in the case of Edward Allan Robinson & 2 others vs Philip Gikaria Muthami, (Civil Application No Nai 187 of 1997) (unreported), where he remarked, in pertinent part, thus: ‘Section 7, above was not, in my view, intended to cover appellants whose appeals have been struck out for incompetence and who desire to file competent appeals. Once a litigant files a valid notice of appeal and had obtained the necessary leave to appeal, where necessary, the matter respecting which an appeal is intended, is thereby removed from the jurisdiction of the superior court, except for limited matters in which specific jurisdiction has been conferred on it to deal with. Section 7, above, presupposes that an intending appellant has not taken any other steps in pursuance of that appeal.’ Besides, from a careful reading of the provisions of rules 74 and 81 of the Appeal to the Court of Appeal for the first time and before he has taken any action at the Court of Appeal, such authority dissipates once the intended Appellant has taken any step at the Court of Appeal. This is so however incompetent the Notice of Appeal filed at the Court of Appeal is. Once a party has filed a Notice of Appeal, the authority to strike it out, extend time, deem it regular or any other act related to it lies with the Court of Appeal not the High Court.”** **Drawing from the foregoing, the court finds that whereas Section 7 of the Appellate Jurisdiction Act grants this court jurisdiction to extend time for filing an appeal out of time to the Court of Appeal, this jurisdiction is properly invoked where an intending Appellant seeks, for the first time enlargement of time to give notice of intention to appeal, and no Notice of Appeal has been lodged in the Court of Appeal.** **Where any step has been taken in furtherance of the appellate process before the Court of Appeal, that jurisdiction shifts exclusively to that Court.” Besides, from a careful reading of the provisions of rules 74 and 81 of Rules of this Court, it is clear that they are intended to deal with the filing of appeals for the first time.”** **The court thereafter stated:** **“The binding reasoning of the Court of Appeal in the Trimborn Agricultural Engineering Limited Case and the persuasive reasoning of the High Court in the Cosmas Mutiso Muema Case appear self-evidently dispositive of the case. While the High Court is clothed with jurisdiction by section 7 of the Appellate Jurisdiction Act to extend time for a litigant who is desirous of filing a Notice of to the Court of Appeal for the first time and before he has taken any action at the Court of Appeal, such authority dissipates once the intended Appellant has taken any step at the Court of Appeal. This is so however incompetent the Notice of Appeal filed at the Court of Appeal is.** **Once a party has filed a Notice of Appeal, the authority to strike it out, extend time, deem it regular or any other act related to it lies with the Court of Appeal not the High Court.”** **Drawing from the foregoing, the court finds that whereas Section 7 of the Appellate Jurisdiction Act grants this court jurisdiction to extend time for filing an appeal out of time to the Court of Appeal, this jurisdiction is properly invoked where an intending Appellant seeks, for the first time enlargement of time to give notice of intention to appeal, and no Notice of Appeal has been lodged in the Court of Appeal.** **Where any step has been taken in furtherance of the appellate process before the Court of Appeal, that jurisdiction shifts exclusively to that Court.”** 1. In **Richard Kipmalel Chesimet v Nandi County Government [2018] eKLR**, the Court also dealt with a similar application. It was held as follows; **“This is an application for leave to file an appeal out of time and stay of execution of the judgment pending appeal. The issues for determination are whether the applicant has met the threshold for grant orders of stay of execution as provided for under Order 42 Rule 6 of the Civil Procedure Rules and whether this court has jurisdiction to deal with the application for leave for leave to appeal out of time.** **The first issue that the court must deal with is as to whether it has jurisdiction to grant leave to appeal out of time. I notice that the applicant is also seeking that the court deems as duly filed an annexed notice of appeal.** **I agree with the submissions of respondent’s counsel that this court has no jurisdiction to grant the orders as sought. The applicant relies on section 7 of the Appellate Jurisdiction Act which provides that;** **The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired:** **Provided that in the case of a sentence of death no extension of time shall be granted after the issue of the warrant for the execution of that sentence.** **This section is in respect of the jurisdiction of the High Court to extend time for giving notice of intention to file an appeal from a judgment of the High Court. The applicant has sought for leave to appeal out of time and not extension of the time within which a notice of intention to appeal should be filed.** **In the case of Trimborn Agricultural Engineering Limited v David Njoroge Kabaiko & another [2000] eKLR held as follows;** **I said in the case of Gabriel Kigi and others vs Kimotho Mwaura & another Civil Application No Nai 197 of 1997 (unreported):** **“But I must revert to section 7 of the Act. That section in my view gives discretionary powers to the High Court to allow extension of time to file a notice of appeal when there is as yet nothing before this Court. It is in this particular aspect that I agree with Bosire Ag JA in the Robinson & others vs Muthami application (supra)”** **The applicant should therefore file the application in the relevant court where Rule 4 of the Court of Appeal Rules shall apply as was held in the case of MUCHUNGI VS JAMES MUCHUNGI KIRAGU & ANOTHER, [1998] eKLR where the Court stated:** **“Lastly, we would like to observe that the discretion granted under Rule 4 of the Rules of this Court to extend the time for lodging an appeal, is, as is well known, unfettered and is only subject to it being granted on terms as the Court may think just. Within this context, this Court has on several occasions, granted extension of time, on the basis that an intended appeal is an arguable one and that it would therefore, be wrong to shut an applicant out of Court and deny him the right of appeal unless it can fairly be said that his action** **was in the circumstances, inexcusable and that his opponent was prejudiced by it. ….”.** **I find that this court has no jurisdiction to hear and determine the application hence the application for leave to file an appeal out of time is hereby struck out with costs to the respondent”** 1. In my view, and relying on the authorities cited, the applicant ought to move to the Court of Appeal for the reason that the Notice of Appeal was, by his own admission, filed on time and that it is the Court of Appeal that struck out the appeal. This court ceased to have jurisdiction when the Notice of Appeal was filed, and on time. 2. Consequently, this court finds merit in the Notice of Preliminary Objection dated 30/10/2025 and the same is upheld. 3. The application dated 4/7/2025 is hereby struck out with costs to the interested party/respondent. **Dated, signed and delivered at Meru this 5th day of August 2026.** **H. M. NYAGA** **JUDGE**