In re Estate of Ahmed (Deceased) (Family Miscellaneous Application E035 of 2025) [2026] KEHC 7959 (KLR) (9 June 2026) (Ruling)

In re Estate of Ahmed (Deceased) (Family Miscellaneous Application E035 of 2025) [2026] KEHC 7959 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 7959 (KLR) Republic of Kenya In the High Court at Nakuru Family Miscellaneous Application E035 of 2025 JK Sergon, J June 9, 2026 IN THE MATTER OF THE ESTATE OF ABDULAZIZ AHMED (DECEASED) Between Faiz Abdulaziz Ahmed Applicant and Feisal Abdulaziz Ahmed 1st Respondent Samburu County Chief Officer Lands and Physical Planning 2nd Respondent Ruling 1.Before this Court for determination is a Notice of Motion dated 2nd August 2025 filed by the Applicant, Faiz Abdulaziz Ahmed. The Application is brought under Articles 47, 48, 50(1) and 159 of the Constitution of Kenya, 2010; Order 50 Rule 6 and Order 42 Rule 2 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 79G of the Civil Procedure Act; and all other enabling provisions of the law. 2.The Applicant seeks the following orders;a.Spent.b.Spent.c.That this Honourable Court be pleased to grant the Applicant leave to appeal out of time against the Ruling of the Honourable Nyamagosa Idris in the Application for Review of the Decree and Judgment herein;d.That pending the hearing and determination of this Application and subsequent appeal, this Honourable Court be pleased to grant a temporary order to maintain the status quo both on the register at the lands office and on the ground in respect of the Estate;e.That this Honourable Court be pleased to admit this Application out of time and to deem the Memorandum of Appeal as properly filed with the Honourable court;f.That the costs of this Application be provided for. 3.The Application is supported by the Supporting Affidavit of the Applicant sworn on even date and a further affidavit sworn by the Applicant’s mother, Zalfa Loumwa Abdulaziz, on 4th May 2026. The Applicant has also annexed a draft Memorandum of Appeal to the Application, which this Court has perused. 4.The Application is opposed by the 1st Respondent, Feisal Abdulaziz Ahmed, through a Replying Affidavit sworn on 30th January 2026, a further affidavit sworn on 25th May 2026, and written submissions filed on 25th May 2026. 5.The 2nd Respondent, the Samburu County Chief Officer for Lands and Physical Planning, filed a Replying Affidavit sworn by Lysson Lesileele on 28th April 2026. The 2nd Respondent took a neutral position, stating that it is a nominal party with no beneficial interest in the estate and that it will abide by any lawful orders of this Court. 6.This Court directed that the parties were to dispose of the application by way of written submissions. At the time of writing this ruling, the Applicant had not filed any written submissions in support of his application. The 1st Respondent, however, complied and filed written submissions dated 25th May 2026. The 2nd Respondent filed no submissions. 7.I have carefully considered all the pleadings, affidavits, annexures, the 1st Respondent’s written submissions, the full history of this protracted litigation, and the relevant legal authorities cited herein. 8.The genesis of this dispute is the estate of the late Abdulaziz Ahmed, who passed away on 8th November 1997 nearly three decades ago. After succession proceedings before the Kadhi’s Court at Nakuru in Succession Cause No. 2 of 2015, judgment was delivered on 29th June 2015, and a decree was issued on 30th May 2016. The decree identified the beneficiaries and directed distribution of the estate in accordance with Islamic law. 9.Rather than comply with the judgment and decree, the Applicant embarked on a sustained campaign of litigation. The following chronology is extracted from the record and is largely undisputed.First, the Applicant filed Nakuru High Court Misc. Application No. 386 of 2015 seeking leave to appeal out of time. That application was dismissed for want of prosecution on 26th October 2016.Secondly, the Applicant filed Nakuru Succession Appeal No. 1 of 2018 challenging the 2015/2016 judgment. That appeal upheld the judgment of 29th June 2015.Thirdly, the Applicant filed Maralal Succession Cause No. E010 of 2021, a parallel succession proceeding concerning the same estate. On 27th February 2025, Hon. T.A. Sitati, Senior Principal Magistrate, dismissed the same as res judicata and revoked the Letters of Administration issued to the Applicant.Fourth, the Applicant filed Nakuru High Court Misc. Civil Application No. E048 of 2022 seeking stay of execution and leave to appeal out of time. On 4th July 2022, Hon. H.K. Chemitei, J., dismissed that application as vexatious and an abuse of process with costs.Fifth, the Applicant filed a Review Application dated 19th February 2025 before the Kadhi’s Court seeking review and variation of the 2015 judgment and 2016 decree. On 15th May 2025, Hon. Nyamagosa Idris, Kadhi, dismissed the review application on merit.Sixth, the Applicant filed the present Application (Misc. Civil Application No. E035 of 2025) seeking leave to appeal out of time against the Kadhi’s ruling of 15th May 2025 and for stay of execution. 10.Following the dismissal of Misc. Application No. E048 of 2022, Justice Chemitei observed as follows;“In short, the application before this court is a mere delay of the judgement of the Kadhis court and I find the same vexatious and abuse of the court process. Let the applicant seek a review of the original judgement if indeed the Kadhis court introduced other external matters that ran contrary to the decision made on June 29, 2015 and May 30, 2016.” 11.The Applicant thereafter sought review of the original judgment and decree before the Kadhi’s Court. That review was dismissed on 15th May 2025. The present Application seeks leave to appeal out of time against that dismissal. 12.The Applicant argues that the Kadhi’s Ruling of 15th May 2025 dismissing his review application was delivered without prior notice to him or his advocates. He claims he only became aware of the ruling when served with the 1st Respondent’s enforcement application. He concedes that the 30‑day appeal period lapsed on 30th June 2025, resulting in a delay of approximately 33 days, which he says is neither inordinate nor deliberate. 13.On the merits of the intended appeal, the Applicant contends that the Kadhi erred by failing to: address unfair asset distribution; correct an erroneous rental income computation of Kshs. 12,204,000; remedy the irregular sale of Title No. SUGUTA MARMAR ‘A’/3; and exclude Maralal Loikas No. 194, which he now claims belongs to his mother, from the estate. 14.The Applicant’s mother, Zalfa Loumwa Abdulaziz, in her Further Affidavit sworn on 4th May 2026, provides a tabulation of monthly expenses totalling approximately Kshs. 56,705 and annexes receipts dating back to 1997–2002. She states these documents were previously unavailable and explains that the family relied on estate income to raise the Applicant and his five siblings. 15.Notably, the Applicant did not file any written submissions in support of his application. The Court has therefore considered his case solely on the basis of the Notice of Motion, the Supporting Affidavit, the further affidavit of his mother, and the draft Memorandum of Appeal. 16.The 1st Respondent opposes the Application in its entirety. In his written submissions dated 25th May 2026, he argues that;(a)The Applicant has not offered any plausible explanation for the delay. The claim of “no notice of the ruling date” is untrue; the Applicant has been represented by counsel throughout and was aware of the proceedings.(b)The intended appeal raises no arguable grounds. All issues raised were either determined in the 2015 judgment and 2016 decree, dismissed in the 2018 appeal, or considered and rejected in the review ruling.(c)The Applicant is guilty of abuse of process, having filed six different proceedings on the same estate over nearly a decade, including a parallel succession cause that was dismissed as res judicata.(d)The Applicant has unclean hands: he remains in continuing contempt of court orders, including failure to pay Kshs. 2,640,744.80 as ordered on 26th August 2022.(e)The Applicant has not satisfied the conditions for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules: no substantial loss demonstrated, no security offered, and the application was not brought without unreasonable delay. 17.The 1st Respondent further points out that in the Maralal parallel succession case, the Applicant himself listed the very properties he now disputes (including Maralal Loikas No. 194) as part of the deceased’s estate, thereby approbating and reprobating. 18.The 2nd Respondent (Samburu County Lands Office) takes a neutral position, stating that it is a nominal party with no beneficial interest in the estate. It confirms that execution of the Kadhi’s 2022 transfer orders was practically impossible due to changes in plot numbers and the fact that the 2016 decree awarded percentage shares, not specific plots. The 2nd Respondent undertakes to abide by any lawful orders of this Court and prays to be shielded from costs. 19.The following issues arise for determination;(i)Whether the Applicant has established sufficient cause for the grant of leave to appeal out of time;(ii)Whether the intended appeal is arguable or whether the Application is an abuse of process;(iii)Who should bear the costs of the Application? 20.The principles governing extension of time to appeal are well settled. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, the Court of Appeal held that the court must consider: the length of the delay, the reason for the delay, the chances of the appeal succeeding if leave is granted, and the degree of prejudice to the respondent. 21.The Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR emphasised that extension of time is not a right but an equitable remedy available only to a deserving party at the discretion of the court. The burden of laying a basis for the exercise of that discretion rests squarely on the applicant. 22.Similarly, in County Executive of Kisumu v County Government of Kisumu & 8 Others [2017] eKLR, the Court of Appeal reiterated that extension of time is a discretionary remedy which is only available where a satisfactory and plausible explanation for delay has been tendered. 23.The delay between the impugned ruling of 15th May 2025 and the filing of the present Application is approximately 33 days, which on its face is not inordinate. However, the court must look beyond the bare arithmetic. 24.The Applicant’s explanation, that he and his advocates were not notified of the ruling date, is not credible for several reasons. First, the Applicant has been represented by counsel throughout these proceedings. Court files are public records. A diligent litigant or advocate could have checked the file. Second, the ruling was delivered in open court. Third, the Applicant’s mother’s lengthy further Affidavit does not even address the issue of delay; instead, it focuses entirely on the merits of the distribution, which is not the issue before this Court at the leave stage. 25.More fundamentally, the delay in this matter cannot be viewed in isolation. The Applicant has spent nearly a decade challenging the same judgment and decree through multiple dismissed applications. The real delay is not 33 days; it is the persistent refusal to comply with lawful court orders since 2015. The Applicant’s pattern is clear; whenever implementation of the decree is imminent, he files a new application, appeal, review, or collateral suit. 26.In these circumstances, I find that the Applicant has failed to provide a satisfactory explanation for the delay. The claim of “no notice” is an afterthought, contradicted by the long history of active participation in these proceedings. 27.Even if this Court were inclined to overlook the lack of explanation, the Applicant would still need to demonstrate that the intended appeal is arguable, that is, that it raises at least one bona fide point of law or fact deserving judicial consideration. (See Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR). 28.The Court has carefully read the draft Memorandum of Appeal annexed to the Application. The grounds raised therein are substantially the same issues that have been litigated and determined in the previous proceedings relating to the estate. 29.The issues the Applicant seeks to raise are neither novel nor unresolved. The distribution of the estate, the rental income computation, and the list of properties were determined in the 2015 judgment and 2016 decree. Those determinations were upheld on appeal in Succession Appeal No. 1 of 2018. The Applicant’s attempt to challenge the same issues through a parallel succession cause at Maralal was dismissed as res judicata on 27th February 2025, and his Letters of Administration were revoked. Justice Chemitei found a similar application (Misc. E048 of 2022) to be vexatious and an abuse of process on 4th July 2022. 30.The Applicant now seeks leave to appeal the dismissal of his review application. But the review application itself was nothing more than an attempt to relitigate matters already decided. The Kadhi dismissed it because the Applicant failed to provide any new evidence, the 1997–2002 receipts were always within the family’s possession and could have been produced earlier and because the Applicant did not demonstrate any error on the face of the record. 31.Furthermore, the further affidavit of Zalfa Loumwa Abdulaziz reveals a fatal contradiction; in the Maralal parallel succession case, the applicant listed the same properties including Maralal Loikas No. 194 as part of the deceased’s estate. He cannot now turn around and claim those properties belong to a third party. This is the very essence of approbation and reprobation, which this Court will not countenance. 32.I am therefore satisfied that the intended appeal has no realistic prospect of success. It is not an arguable appeal; it is yet another attempt to reopen a dispute that has been conclusively determine. 33.The doctrine of abuse of process is well established. In Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] KLR 229, the Court of Appeal held that abuse of process arises where court procedures are employed for purposes other than those for which they were designed, including where a party files multiple proceedings on the same subject matter. 34.The chronology set out above speaks for itself. The Applicant has filed six separate proceedings on the same estate. Each time, his challenges have been dismissed. Each time, he has failed to comply with orders. Each time, he has delayed distribution to other beneficiaries. 35.As the Court of Appeal observed in Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 Others [2015] eKLR, litigation must come to an end. The Applicant’s conduct is a textbook example of abuse of process. This Court will not aid a litigant who persistently seeks to frustrate the implementation of lawful court orders. 36.In Uhuru Highway Development Ltd v Central Bank of Kenya & 2 Others [1996] eKLR, the Court of Appeal cautioned against allowing parties to litigate the same issues through successive proceedings merely because they have changed the procedural vehicle through which those issues are presented. The Applicant’s grievances remain exactly the same grievances he has advanced for years. Only the procedural mechanism changes. The objective remains unchanged: to delay implementation of the decree. 37.The prayer for a temporary order maintaining the status quo on the land register and on the ground is in essence a prayer to allow the applicant’s side of the family to continue occupying and controlling the estate to the exclusion of the 1st Respondent and other beneficiaries. That is precisely the situation that the 2016 decree was intended to remedy. This Court will not grant an order that perpetuates an injustice. The same is declined. 38.Furthermore, the Maralal Magistrate’s Court has already revoked the Letters of Administration issued to the applicant. There is no legal basis for this Court to issue a status quo order in favour of a person who has been found to have abused the court process and whose administration has been revoked. 38.On Prayer (e), the Applicant seeks to have this Court admit the Application out of time and deem the Memorandum of Appeal as properly filed. This prayer is consequential to the grant of leave to appeal out of time under Prayer (c). Having declined to grant leave to appeal out of time, there is no competent appeal before this Court. Consequently, Prayer (e) is also declined. 39.On costs, Section 27 of the Civil Procedure Act provides that costs follow the event unless the Court orders otherwise. The Respondents have successfully opposed the application. This Court finds no good reason to depart from the general rule. The Applicant's Prayer (f) is determined in favour of the 1st Respondent, and his prayer for costs is hereby granted. 40.In view of the foregoing, the notice of motion dated 2nd August 2025 is hereby dismissed in its entirety with costs to the 1st Respondent. 41.Orders accordingly. DATED, SIGNED AND DELIVERED AT NAKURU THIS 9TH DAY OF JUNE, 2026.........................J.K SERGONJUDGEIn presence of:Jamleck/Rutoh C/ANo Appearance for parties