Kache v Ali (Miscellaneous Civil Application E002 of 2026) [2026] KEHC 6849 (KLR) (21 May 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MARSABIT** **MISC CIVIL APP NO E002 OF 2026** **ADAN HIRBO KACHE……..………………..………..….... APPLICANT** **VERSUS** **GUYE HALIMA ALI…………………………………………RESPONDENT** **RULING** 1. **INTRODUCTION** 2. The application before the court for determination is the Notice of Motion application dated 5th March 2026 brought pursuant to provisions of ***Section 1, 1A, 3, 3A & 65 of the Civil Procedure Act, Section 8 of the Children’s Act,2022, Order 42 & Order 50 rule 6 of the Civil Procedure Rules, Articles 50(1), 53 and 159 of the constitution of Kenya*** and all other enabling provision of law. The Applicant seeks for orders that; 3. ***Spent*** 4. ***spent*** 5. ***THAT this Honourable court be pleased to grant leave to the Applicant herein to file an appeal out of time on the trial courts judgment of 7th January, 2026 delivered in Marsabit KCDC NO E038 OF 2025.*** 6. ***THAT this honourable court be pleased to issue such further orders as it may deem fit in the best interest of the Estate.*** 7. ***THAT costs of this Application be provided for***. 8. The said application is supported by the ground stated on the face of the said application and the attached supporting affidavit dated 5th March 2026, sworn by the applicant who deponed that the respondent was his wife and she did file a divorce petition against him before the Kadhi’s court and vide a judgment delivered on 7th January 2026, the same was granted and their minor children were placed under the custody their maternal grandmother. 9. He was not aware of the said judgment and got to know about the same two weeks after it had been delivered and upon getting a copy and pursual the same, he was dissatisfied by the orders issued, but had been advised that time to appeal had lapsed and thus needed to seek leave to appeal out of time. The intended appeal raised valid legal and factual issues which he had outlined in the annexed memorandum of appeal and without doubt was merited and deserved to be heard on merit. 10. The respondent would not suffer any prejudice if the orders sought were granted and he thus urged this court to grant the orders sought in the interest of justice. 11. The Respondent opposed this Application through the replying affidavit of ***ALI AILA ADO***, who stated that he was father of the respondent, who had died during the pendency of the suit between her and the applicant before the Kadhi’s court. The Applicant was fully aware of the said judgment and his averment that he did not know of the same was not true. 12. After his daughter death the Kadhi’s court had allowed him to administer her estate, but the same was limited to accessing her two bank accounts held at KCB Bank, but he had not taken out letters of administration of her estate and therefore did not have power to administer her estate. This application was therefore prematurely filed against a deceased party, whose estate had no administrator and to that extent the application was a non-started and ought to be struck out. 13. He further averred that the applicant had abandoned his family for a period of over 2 years during which time his daughter had been ailing and bed ridden and the applicant was only rushing to court for selfish reasons to find a pathway to benefit from the deceased estate through the children that he had also abandoned and had been under their care for the said period. 14. The applicant had therefore come to court with unclean hands, and the application was a nullity for being instituted against a deceased person, whose estate had no administrator and reiterated that the right process ought to be followed before the said application could be maintained. 15. **ANALYSIS & DETERMINATION** 16. It is an uncontested fact that the respondent is deceased and in fact had passed on whilst the proceedings were still pending before Kadhi’s court. There is no legal administrator so far appointed to administer her estate, and it therefore goes without saying that any suit instituted against her is a nullity abinition. 17. **DISPOSITION** 18. The Application dated 5th March 2026 therefore lacks merit and is dismissed with no orders as to costs. 19. It is so Ordered. **READ, SIGNED,** and **DELIVERED** virtually at **Marsabit** on this **21st** day of **MAY 2026.** **FRANCIS RAYOLA OLEL** **JUDGE** Delivered on the virtual platform, Team this **21st** day of **MAY 2026.** **In the presence of**: - ………………………………………………………..Applicant ………………………………………………………. Respondent ……………………………………………………….Court Assistant