Gitahi v Ndumo & another (Civil Appeal (Application) E091 of 2024) [2026] KECA 1577 (KLR) (31 July 2026) (Ruling)

Gitahi v Ndumo & another (Civil Appeal (Application) E091 of 2024) [2026] KECA 1577 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1577 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal (Application) E091 of 2024 K M'Inoti, JA July 31, 2026 Between Cyrus Kingori Gitahi Applicant and Alice Wangari Ndumo 1st Respondent Martin Nderitu Muteru 2nd Respondent (Application for leave to file appeal out of time, to amend memorandum of appeal, and for stay of execution pending appeal from the judgment of the High Court of Kenya at Nyeri (Muchemi, J.) dated 26th January 2023 in HCSC No. 560 of 2004) Ruling 1.The application before me is dated 21st May 2026 seeks a confusing potpourri of orders, including leave to appeal out of time, the deeming of a record of appeal filed out of time as filed on time, leave to file a further record of appeal, leave to amend the memorandum of appeal, the deeming of the memorandum the memorandum of appeal already filed as filed on time, a “preservation order” to stop the respondents from transferring or interfering with, or evicting the applicant from the property known as LR No. Mahiga Munyange 238 (the suit property) and a “preservation order” restraining the beneficiaries of Ibrahim Gitahi from transferring his free estate. 2.As is readily apparent, the application is one of those untenable composite applications in which an applicant seeks, in the same application, orders that can only be granted by a single judge, as well as orders that can only issue from the full Court. The Court has reiterated time without number that parties should not mix prayers that are the remit of the Court when it is differently composed. Doing so brings confusion and delay, as well as the preposterous and undesirable practice of hearing applications in instalments. (See County Government of Meru v Kaburu t/a Mwirigi Kaburu & Co Advocates [2025] KECA 1689 (KLR), Associated Construction Co. (K) Ltd v. Kyamu Construction & Engineering Ltd [2022] KECA 872 (KLR), and Mucwa v. Makembo & 3 Others [2022] KECA 1006 (KLR)). 3.For that reason, I shall confine myself to the prayers that are properly the remit of a single judge and leave the applicant to proceed as best as he can as regards the other prayers. 4.As far as is relevant to orders that may be granted by a single judge, the applicant has deposed that he was diagnosed with cancer of the oesophagus in 2024, which, together with the ensuing hospital appointments and attendances, prevented him from following up and filing the record of appeal within the prescribed time. He adds that he has now recovered sufficiently to file the record of appeal; that the record is ready for filling; and that he is ready to file the same immediately. 5.It is further deposed that the High Court rendered its judgment on 26th January 2023 and held that the suit property was trust property to be distributed between his siblings and his cousins. The applicant adds that his intended appeal is arguable because the High Court, sitting as a succession court, did not have jurisdiction to declare that the suit property was held in trust. 6.It is the applicant’s further contention that he instructed his former advocates to appeal and that they indeed filed a notice and memorandum of appeal and obtained a certificate of delay dated 17th November 2023, before he was taken ill. In his supporting affidavit, the applicant has explained in details about his illness and the various hospitals he has had to attend for further tests and treatment, and has annexed to that affidavit a bundle of hospital documents to support his averments. 7.The applicant adds that he lives on the suit property with his family and has extensively developed the same. That none of the respondents live on the suit property and that it is yet to be transferred or subdivided as ordered by the High Court. It is therefore his view that the respondents stand to suffer no prejudice should time be extended as prayed. 8.In his written submissions dated 4th June 2026, the applicant relies on the decision in Paul Wanjohi Mathenge v. Duncan Githanje Mathenge [2013] KECA 119 (KLR) where time was extended on account of a party’s illness. He further states that the delay from the time when the certificate of delay was issued to the time the record of appeal was filed was 185 days, which is not inordinate, granted the explanation regarding his illness. 9.As regards leave to amend the memorandum of appeal, the applicant submits that he has submitted a draft and that the amendments will not prejudice the respondents but will enable the Court to determine conclusively all the relevant issues in the appeal. 10.The application is opposed by the 2nd respondent, Marin Muteru Nderitu, vide a replying affidavit sworn on 28th May 2026. The bulk of the depositions, like those of the applicant, dwell on the history and merits of the case. As far as is directly relevant to the application for extension of time, the 2nd respondent avers that the applicant’s appeal is frivolous because the dispute at hand is a succession one rather than a dispute on land ownership, and therefore the High Court had jurisdiction in the matter. 11.While admitting the applicant’s intervening medical condition, the 2nd respondent avers that the applicant had an advocate on record who should have filed the appeal within the prescribed time. He contends that it is in the interest of justice that the matter should be concluded and brought to rest. 12.The 1st respondent neither filed a replying affidavit, nor submissions. 13.As has been stated time and again, the jurisdiction vested in the Court by rule 4 of the Court of Appeal Rules to extend time is wide and unfettered. The only constraint is that the discretion should be exercised judiciously and upon reason rather than arbitrarily or upon whim. Overtime the Court has developed principles which guide it in determining whether or not to extend time. For example, in Leo Sila Mutiso v. Rose Hellen Wangari Mwangi [1999] 2 EA 231, this Court stated the relevant considerations as follows:“It is now settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general, the matters which this Court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly, (possibly), the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted”. (See also Nicholas Kiptoo arap Korir Salat v. IEBC & 7 others [2014] eKLR) 14.The record shows that the judgment was rendered on 26th January 2023 and the applicant lodged the notice of appeal on 8th February 2023, which was within the period of 14 days prescribed by rule 77(2) of the Court of Appeal. The applicant also applied for certified copies of the proceedings and judgment on 3rd February 2023, which was also within the 30 days prescribed by the proviso to rule 84(1). The certified copies of the judgment and proceedings were availed on 17th November 2023. 15.According to the Rules of the Court, the applicant was required to file the appeal within 60 days from the date when the proceedings and judgment were availed, namely on or before 16th January 2024. The record of appeal was filed out of time on 5th March 2024, a delay of less than two months. 16.The applicant has explained that the delay was occasioned by his diagnosis with oesophagus cancer in 2004, which required him to attend various hospitals for further tests and treatment, thus distracting him from following up on the appeal. The 2nd respondent does not dispute the applicant’s cancer diagnosis, which he properly and humanely describes as “unfortunate”, but he contends that the applicant’s advocate ought to have proceeded with the filing of the appeal. 17.In the circumstances of this application, I do not think the delay of less than two months is inordinate, granted the explanation for the delay. In other words, the applicant has satisfactorily explained the delay. There is nothing on record to suggest that the applicant has not acted bona fides or has attempted to steal a match upon the respondents. Prima facie, the intended appeal is not frivolous and the 2nd respondent has not pointed to any factors that would lead me to the conclusion that the respondents would suffer greater prejudice than the applicant, if I allow this application. 18.The 2nd respondent did not address the prayer for amendment of the memorandum of appeal, which I take to mean that the prayer is not contested. 19.I have anxiously considered the raft of prayers made by the applicant and in particular those that are grantable by a single judge, such as extension of time and leave to amend. Instead of dwelling on each of those multitude of prayers, the best cause that commends itself to me is to extend time for the applicant to file one proper and complete record of appeal incorporating the amendments to the memorandum of appeal, and obviating the need to file a further record of appeal. 20.In the premises, I allow the application for extension of time and amendment of the memorandum of appeal, and direct the applicant to file a complete and correct record of appeal within 21 days from the date of this ruling. Costs of this application shall abide the outcome of the appeal. It is so ordered. DATED AND DELIVERED AT NYERI THIS 31ST DAY OF JULY, 2026.K. M’INOTI................................... JUDGE OF APPEALI certify that this is a true copy of the original.Signed DEPUTY REGISTRAR