https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8295

Pambo v Pambo (Family Miscellaneous Application E006 of 2025) [2026] KEHC 8295 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 8295 (KLR) Republic of Kenya In the High Court at Migori Family Miscellaneous Application E006 of 2025 ACA Ong’injo, J May 28, 2026 Between David Ochieng Ephraim Pambo Applicant and Dancan Odhiambo Pambo Respondent Ruling 1.The application before this court is 16th December, 2025. It is brought pursuant to Article 48 and 50(1) of the Constitution, Section 50(1) of the Law of Succession Act, Section 79G of the Civil Procedure Act, Rules 67 and 73 of the Probate and Administration Rules, Order 42 Rule 6 of the Civil Procedure Rules 2010 and all enabling provisions. The Applicant seeks that leave be granted so that he could appeal out of time against the ruling delivered on 16th July 2025 and dated 21st July 2025 by Hon. Mutava in Rongo Succession Cause No. 18 of 2018 2.The Applicant also sought that upon leave being granted the appeal filed on 16th December 2025 be deemed as duly filed and orders of stay of execution of the grant confirmed on 12th February 2013 should be issued against the Respondent staying subdivision or sell of parcels No. North Sakwa /Kamasoga/ 242 and 1078.He also sought for costs of the application. 3.The application was premised on the supporting affidavit of the Applicant sworn on 16th December, 2025 and the grounds on the face of the application. 4.The ruling against which the Applicant is desirous to appeal sought revocation of grant made on 31st September, 2012 and confirmed on 12th February 2013. The Administrators in the said confirmed grant are the Respondent and the mother of the Applicant Rose Akeyo Pambo. The Applicant wanted the subject parcels of land to revert to the name of the deceased’ estate. 5.The Trial Magistrate declined to grant the orders sought because the Applicant did not provide proof of the facts he alleged were not disclosed. She also perused the pleadings and established that the process of succession went through several stages including meetings before the Chief Central Sakwa Location who wrote a letter dated 5th August 1996 identifying the beneficiaries to the estate of the deceased and the Respondent and the mother of the Applicant were appointed as Administrators of the estate of the deceased. The Trial Magistrate also found upon perusal of the court records that the estate was distributed in accordance with the wishes of the deceased wherein the same was subdivided between the two wives of the deceased and one interested party was also given his portion of the estate. That the decision to distribute the estate between the two wives of the deceased sat well with the Applicant’s mother and therefore the application to revoke the grant several years down the line without proper cause will cause injustice to all the parties.This application was canvassed by way of written submissions. 6.The submissions of the respective parties have been considered and the issue for determination is whether the Applicant has satisfied the court for grant of orders sought. 7.The principles governing an application for leave to appeal out of time under Section 79G of the Civil Procedure Act are now settled. The Applicant must satisfactorily explain the delay, demonstrate that the intended appeal is arguable, and show that no prejudice incapable of compensation by costs will be occasioned to the Respondent if the orders sought are granted. The Court also exercises its discretion judiciously and on the basis of the circumstances of each case. Relevant considerations include the length of delay, reasons for delay, chances of success of the intended appeal and the degree of prejudice to the opposite party. 8.The ruling sought to be appealed from was delivered on 16th July 2025 whereas the present application was filed on 16th December 2025. There was therefore a delay of approximately five months in filing the intended appeal. Such delay is not insignificant and required a satisfactory and plausible explanation from the Applicant. 9.From the material placed before the court, the Applicant has not sufficiently explained the delay in approaching the court. Other than expressing dissatisfaction with the ruling of the Trial Magistrate, no adequate explanation has been tendered to demonstrate why the appeal could not be lodged within the statutory period or shortly thereafter. The discretion to enlarge time is not granted as a matter of course and a party seeking such indulgence must place before the court sufficient material to justify the exercise of discretion in his favour. 10.Further, this court has considered the impugned ruling and the nature of the intended appeal. The Trial Magistrate considered the evidence and court record and found that the succession proceedings had involved all relevant beneficiaries; meetings had been conducted before the area Chief; that the Respondent and the Applicant’s mother were appointed administrators; and that the estate was distributed in accordance with the wishes of the deceased. The court also found that the Applicant failed to demonstrate concealment of material facts warranting revocation of the grant under Section 76 of the Law of Succession Act. 11.The confirmed grant sought to be revoked was issued on 12th February 2013, more than twelve years before the present application was filed. The court cannot ignore the fact that succession matters require finality and certainty, particularly where distribution has long been effected and beneficiaries may already have settled on their respective portions. Reopening the administration of the estate after such a prolonged period without sufficient cause would occasion prejudice to the beneficiaries and disrupt settled interests. 12.On the prayer for stay of execution, the Applicant was required to demonstrate substantial loss and satisfy the conditions under Order 42 Rule 6 of the Civil Procedure Rules. The Applicant has not placed before the court sufficient evidence to show imminent subdivision or sale of the suit properties or that substantial loss incapable of compensation would arise if stay is not granted. In any event, the prayer for stay is dependent upon the grant of leave to appeal out of time. 13.In the circumstances, this court is not persuaded that the Applicant has laid a proper basis for the exercise of discretion in his favour. 14.Accordingly, the Notice of Motion dated 16th December 2025 is hereby dismissed with costs to the Respondent. DATED, SIGNED AND DELIVERED AT MIGORI, THIS 28TH DAY OF MAY, 2026.ANNE ONG’INJOJUDGEIn the Presence of:Victor – Court AssistantCalvince – Court AssistantApplicant – Mr. Yegon and Ms. Kijala AdvocatesRespondent – Mr. Odhiambo Kanyangi Advocate