https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1586

In re Estate of Nguitui (Deceased) (Civil Application E050 of 2026) [2026] KECA 1586 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1586 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Application E050 of 2026 LA Achode, JA July 31, 2026 IN THE MATTER OF THE ESTATE OF FRANCIS NGUITUI (DECEASED) Between Blasio Ndiritu Kariuki 1st Applicant John Nguitui Kariuki 2nd Applicant Margaret Wanjira Kariuki 3rd Applicant Regina Muthoni Kariuki 4th Applicant Linus Mwangi Kariuki 5th Applicant Daniel Murage Kariuki 6th Applicant Mary Mwihaki Kariuki 7th Applicant Lydia Wamuyu Kariuki 8th Applicant and Elizabeth Wangechi Mwangi Respondent (Being an application to file an appeal out of time against the Judgment of the of High Court of Kenya at Nyeri (Njagi J) dated 8th November, 2026inP & A Appeal No. 1 of 2020) Ruling 1.By a Notice of Motion dated 26th May, 2026, brought pursuant to rules 4 of the Court of Appeal Rules, 2022, the applicants seek orders:i.Spent,ii.That they be granted leave to file a Notice of Appeal and Record of Appeal out of time,iii.That they be granted stay of execution of the Judgment of the High Court of Kenya, delivered by Njagi, J on 8th November, 2022, in relation to distribution of Land Parcel Nyeri/Watuka/1475, pending the hearing and determination of the application. 2.Only the prayer seeking leave under rule 4 need concern me as a single Judge. The grounds of the application are stated on the face thereof and in the supporting affidavit sworn by the 1st applicant Blasio Nderitu Kariuki on 26th May, 2026. 3.The grounds stated that following the judgment delivered on 8th November, 2022, the applicants lodged a Notice of Appeal which was received on 8th December 2022. That they wrote a letter bespeaking the certified proceedings on 23rd December, 2024, but there was a delay in supplying them the proceedings. The Certificate of Delay was issued on 10th June, 2025. 4.The applicants filed submissions dated 20th July, 2026 in which they attribute the delay to the failure to receive typed proceedings within the requisite timelines. 5.By the replying affidavit and submissions, both dated 21st July, 2026, the respondent submits that the delay in preferring an appeal is grossly inordinate, the Notice of Appeal having been filed 30 days after the judgment was delivered and no explanation was given for the delay. 6.The respondent argues that instead of filing this application first, the applicants went about filing an application for rectification of grant as if there was no urgency in filing the intended appeal. That after receiving the certified copies of proceedings, the judgment and the Certificate of Delay, the applicants took more than 3 years to file this application and no reason is given to explain the delay. 7.It is now settled that extension of time is not an automatic right to a party. In considering whether or not to grant extension of time, this Court takes into account various factors, as demonstrated in the case of Paul Wanjohi Methane v Duncan Gichane Mathenge [2013] eKLR as follows:“The discretion under Rule 4 is unfettered, but it has to be exercised judiciously, not on whim, sympathy or caprice. I take note that in exercising my discretion I ought to be guided by consideration of the factors stated in previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent and interested parties if the application is granted, and whether the matter raises issues of public importance.” 8.In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 this Court set out the foregoing parameters for the exercise of the discretionary power under rule 4 and added that the Court must also consider the chances of the appeal succeeding if the application is granted. 9.The Supreme Court has now settled the guiding principles in the exercise of discretion to extend time in the case of Nicholas Kiptoo Korir Arap Salat vs IEBC [2014] eKLR, as follows:i.Extension of time is not a right to a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.ii.A party who seeks extension of time has the burden of laying basis to the satisfaction of the court.iii.Whether the court should exercise its discretion to extend time is a consideration to be made on a case-by-case basis.iv.Where there is reasonable reason for the delay, the delay should be explained to the satisfaction of the court.v.Whether there will be any prejudice suffered by the Respondent if extension is granted.vi.Whether the application has been brought without undue delay.vii.Whether in certain cases public interest should be a consideration for extension of time. 9.The applicants herein emphasize that the delay in filing the appeal was not of their doing, and that granting the extension of time to appeal would serve the interests of justice and not prejudice the respondent. 10.On the issue as to whether the delay is reasonable and excusable the applicants submit that the judgment was rendered on 8th November, 2022. They lodged a Notice of Appeal which was received on 8th December 2022 and they wrote a letter bespeaking the certified proceedings on 23rd December, 2023. However, there was delay in supplying the proceedings. 11.The respondent on the other hand argues that the Notice of Appeal was lodged 30 days after the judgment. Further, that after receiving the certified copies of proceedings, the judgment and the Certificate of Delay, the applicants took more than 3 years to file this application and no explanation is given for either of those delays. 12.The rules do not specify the number of days that would constitute inordinate delay and therefore, each case is to be determined on its own facts. In the case of Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKL this Court stated that:“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.” 13.From the date of the decision on 8th November, 2022 to the filing of the application for leave to appeal on 26th May, 2026, three and a half years have passed. The Certificate of Delay shows that the proceedings were prepared and ready for collection on 23rd July, 2023. The applicants have not given any explanation why the Notice of Appeal was filed 30 days after the judgment, instead of the 14 days timeline provided under rule 77, or why it has taken three years to bring this application once the proceedings were certified as ready for collection. The fact that there was a post judgment application pending before the trial court for rectification of the grant did not change what they intended to appeal against in the impugned judgment. 14.Having found that the reason for the delay is insufficient, I will not proceed further to consider whether the intended appeal will possibly succeed, or whether the respondent will suffer any prejudice if the leave to appeal is granted. This is in line with the decision of this Court in Abdul Azizi Ngoma vs. Mungai Mathayo [1976] Kenya LR 61, 62, where it was held that:“We would like to state once again that this court’s discretion to extend time under rule 4 only comes into existence after ‘sufficient reason’ for extending time has been established and it is only then that other considerations such as the absence of any prejudice and the prospects or otherwise of success in the appeal can be considered.” 15.I have anxiously considered the application before me and find that the applicant has not provided valid reasons for the delayed filing of the appeal. Therefore, I decline to grant the prayers sought. The Notice of Motion application dated 26th May, 2026, is hereby dismissed With costs to the respondent.It is so ordered. DATED AND DELIVERED AT NYERI THIS 31ST DAY OF JULY, 2026.L. ACHODEJUDGE OF APPEALI certify that this is a true copy of the original SignedDEPUTY REGISTRAR