https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10115

In re Estate of Karaihira (Deceased) (Succession Cause 124 of 2003) [2026] KEHC 10115 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10115 (KLR) Republic of Kenya In the High Court at Nakuru Succession Cause 124 of 2003 JK Sergon, J July 9, 2026 IN THE MATTER OF THE ESTATE OF JORAM NJORA KARAIHIRA (DECEASED) Between Geoffrey Kamonjo Njora Applicant and Thimothy Kamau Njoora Respondent Ruling 1.Before this Court is a Notice of Motion dated 3rd July 2025 brought under the provisions of section 1A,1B and 3A, 95 of the Civil Procedure Act Cap 21 of the Laws of Kenya, Order 50 Rule 6, Order 43 Rule 1(2) and (3) of the Civil Procedure Rules, by the Applicant, Geoffrey Kamonjo Njora, seeking the following orders:a.That this Honourable Court be pleased to extend time for the Applicant to file an application for leave to appeal against the ruling delivered by the Honourable Justice H. K. Chemitei on 19th October 2023 in Nakuru Succession Cause No. 124 of 2003.b.That this Honourable Court be pleased to grant the Applicant leave to appeal against the said ruling to the Court of Appeal.c.That the costs of this Application be provided for. 2.The application is supported by the grounds on the face of the motion, a Supporting Affidavit sworn by the Applicant on 3rd July 2025, and a Further Supporting Affidavit sworn on 19th September 2025. 3.The Respondent, opposes the application through a Replying Affidavit sworn by Timothy Kamau Njoora on 9th September 2025. The Applicant also filed Written Submissions dated 1st October 2025.I have duly considered the record and oral highlights. 4.The deceased, Joram Njora Karaihira, passed away intestate on 6th March 1997. In 2003, his son Elijah Karaihira Njora petitioned for and was issued with letters of administration in this Succession Cause. When the petitioner applied for confirmation of the grant, the Applicant filed an objection challenging the proposed mode of distribution. 5.The dispute proceeded to hearing, and on 19th October 2023, Justice H. K. Chemitei delivered judgment dismissing the Applicant's objection and upholding distribution based on a disputed family consent. Both counsel were present during the delivery of the judgment. 6.The Applicant, being aggrieved, instructed his then advocates, G. N. Kimani & Co. Advocates, to file an appeal. A Notice of Appeal was filed on 16th November 2023, and a letter requesting typed proceedings was sent to the High Court on 27th November 2023. The Applicant believed, based on assurances from his former advocates, that a Memorandum of Appeal had also been duly filed. 7.Due to dissatisfaction with his former advocates, the Applicant instructed a new firm, Odiya & Associates Advocates, in early 2024. Since the matter was post-judgment, the new firm was required under Order 9 Rule 9 of the Civil Procedure Rules to seek leave to come on record. They filed the necessary application on 6th February 2024, which was strongly opposed by the previous advocates. 8.After a contested process, the court delivered its ruling on 15th October 2024, allowing Odiya & Associates to come on record on condition that the Applicant deposits Kshs. 400,000 as security for costs. Despite his advanced age, illness, and financial constraints, the Applicant managed to raise the amount and deposited it on 11th November 2024. 9.Once his new advocates were formally on record, they investigated the status of the earlier appeal and discovered, to the Applicant's shock, that the purported Memorandum of Appeal filed by his previous counsel had been rejected at the registry and was never admitted. No valid appeal was ever in existence, a fact concealed from the Applicant by his former advocates. 10.The Applicant's current advocates then moved the Court of Appeal by filing Civil Application No. E049 of 2025 seeking leave to appeal out of time. However, on 30th June 2025, the Court of Appeal (Mativo, JA) dismissed the application on the basis that no leave to appeal had been sought within the time prescribed under the law. The Court held that since appeals in succession matters are not automatic, the Applicant should seek leave in the right forum, that is, this Honourable Court. 11.It is against that backdrop that the Applicant now comes before this Honourable Court seeking extension of time to file an application for leave to appeal. 12.The Applicant contends that the delay in seeking leave was neither deliberate nor inordinate but arose due to factors beyond his control, including:a)Misrepresentation by his former advocates, who failed to file the appeal and misled him into believing it was properly on record.b)Protracted litigation in securing change of legal representation, which took nearly 11 months to resolve.c)Financial incapacity on the part of the Applicant, a sickly elderly retiree, in raising the security for costs. 13.The Applicant submits that his intended appeal raises substantial issues warranting consideration by the Court of Appeal. 14.The Applicant further submits that the Respondent will suffer no prejudice if the orders are granted, while he stands to suffer irreparable injustice if denied the opportunity to be heard, which would violate his constitutional rights under Articles 27, 40, 48, and 50 of the Constitution. 15.The Respondent opposes the application and submits that:a)The application is mischievous, misconceived, and a non-starter.b)The prayers sought are res judicata as the same had been sought in Nakuru Court of Appeal Civil Application No. E049 of 2025.c)The application is brought after unreasonable delay; the judgment having been delivered on 19th October 2023.d)The application is a non-starter as there is no proper Notice of Appeal on record, the Notice of Appeal having been filed on 16th November 2023 outside the mandatory 14-day period.e)Lack of diligence and/or casualness by the Applicant and/or his counsel cannot be equated to genuine mistake or error.f)The Applicant has frustrated the conclusion of this succession cause since 2003, and some beneficiaries have passed on during the pendency of the matter.g)The intended appeal has no chance of success as the Applicant is the vast beneficiary compared to the other beneficiaries and is registered proprietor of Githioro/Njabini 52/1897 measuring approximately 100 acres, which he holds in trust for the family. 16.Having considered the application, the affidavits, the written submissions, and the relevant legal authorities, the following issues arise for determination:a)What is the effect of the Supreme Court's decision in Wandi v Muchira (Suing as the Administrator Ad Litem of Jane Muthoni Muchira) [2026] KESC 29 (KLR) on the requirement for leave to appeal in succession matters?b)Whether the Applicant should be granted extension of time to file an appeal to the Court of Appeal.c)Whether the Respondent will suffer prejudice if the application is granted. 17.On 31st March 2026, the Supreme Court delivered a landmark judgment in Wandi v Muchira (Suing as the Administrator Ad Litem of Jane Muthoni Muchira) [2026] KESC 29 (KLR) that fundamentally changed the legal landscape for appeals in succession matters. 18.In that case, the Supreme Court was called upon to resolve conflicting decisions of the Court of Appeal on whether leave is a prerequisite for lodging an appeal to the Court of Appeal against a decision of the High Court rendered in the exercise of its original jurisdiction in a succession matter. 19.The Court held as follows;a)No Legal Requirement for Leave: Neither the Constitution nor the Law of Succession Act requires a party to seek leave before appealing a High Court decision in a succession matter. The Court observed that when Parliament intends to require leave as a condition precedent to the exercise of the right of appeal, it does so expressly and in unambiguous terms. The requirement for leave is therefore neither implied nor inferred from statutory silence.b)Article 164(3)(a) of the Constitution: The Court held that Article 164(3)(a) of the Constitution confers appellate jurisdiction on the Court of Appeal to hear appeals from the High Court. While the Court acknowledged that Article 164(3) establishes jurisdiction rather than creating a right of appeal, it found that the right of appeal in succession matters is derived from the Constitution itself, read together with Section 47 of the Law of Succession Act.c)Equality and Non-Discrimination: The Court observed that imposing a leave requirement exclusively on litigants whose matters originate in the High Court, while litigants whose matters originate in the Magistrate's Court enjoy a clear right of appeal to the High Court under Section 50(1) of the Law of Succession Act, amounts to unequal treatment contrary to Article 27 of the Constitution. It also offends Article 48 (access to justice) and the right to a fair hearing under Article 50 of the Constitution.d)Statutory Silence: The Law of Succession Act is silent on appeals from the High Court to the Court of Appeal. The Court held that such statutory silence cannot be interpreted to impose a leave requirement. The requirement for leave, as developed in some Court of Appeal decisions, lacked constitutional or statutory foundation and could not be sustained. 20.The Supreme Court ultimately declared that decisions of the High Court rendered in the exercise of its original jurisdiction in succession matters are appealable to the Court of Appeal as of right, without the need to first obtain leave. 21.This decision has direct and profound implications for the present application. The Applicant's primary prayer was for extension of time to file an application for leave to appeal, and for leave to appeal to the Court of Appeal. In light of the Supreme Court's ruling in Wandi v Muchira, the requirement for leave no longer applies to succession appeals from the High Court exercising its original jurisdiction. 22.The Respondent's argument that this application is a non-starter because no leave was sought, and the Respondent's reliance on the Court of Appeal's decision in Njora v Njora [2025] KECA 1176 (KLR) , are now overtaken by the Supreme Court's binding decision in Wandi v Muchira. The Supreme Court has authoritatively settled the law, and this Court is bound to follow it. 23.Therefore, the Applicant's application for leave to appeal is now unnecessary. The Applicant's appeal against the judgment delivered on 19th October 2023 lies as of right to the Court of Appeal. 24.While the requirement for leave has been eliminated, the Applicant still requires an extension of time to file his Notice of Appeal and Memorandum of Appeal. The judgment was delivered on 19th October 2023, and the Applicant's Notice of Appeal was filed on 16th November 2023, which was outside the mandatory 14-day period prescribed by Rule 75(2) of the Court of Appeal Rules. 25.The principles governing extension of time are well settled. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] KESC 12 (KLR) laid down the guiding principles, including the need for a satisfactory explanation of delay, whether the application has been brought without undue delay, whether there will be any prejudice suffered by the Respondent, and whether the intended appeal is arguable. 26.The Applicant has provided a detailed and plausible explanation for the delay:a)Misrepresentation by former advocates. The Applicant promptly instructed his then advocates to file an appeal. A Notice of Appeal was filed on 16th November 2023, and a letter requesting typed proceedings was sent on 27th November 2023. The Applicant was led to believe that a Memorandum of Appeal had also been duly filed. It was only after his new advocates came on record that they discovered the Memorandum of Appeal had been rejected and never admitted. This fact was concealed from the Applicant by his former advocates.b)Protracted change of advocates. The Applicant instructed new advocates in early 2024. However, because the matter was post-judgment, the new firm was required under Order 9 Rule 9 of the Civil Procedure Rules to seek leave to come on record. The application was opposed and only determined on 15th October 2024, nearly 11 months later.c)Financial constraints. The Applicant deposed that being a sickly, elderly retiree with limited financial means, he struggled to raise the required security of Kshs. 400,000, which he only deposited on 11th November 2024. 27.The Respondent argues that the current advocates could have checked the E-filing portal to confirm the status of the appeal since they came on record on 6th February 2024. While this is a valid concern, the Applicant's explanation is that his new advocates were not formally on record until after the ruling of 15th October 2024 and the deposit of security on 11th November 2024. The Applicant has demonstrated a consistent pursuit of his right to appeal. 28.In Kimetto v Chepkwony & another [2025] KECA 1805 (KLR) , the Court of Appeal held that where the delay in filing the Notice of Appeal was excusable, and the consequent delay in seeking leave arose from the time necessarily spent regularizing that Notice of Appeal, then both delays spring from the same root cause and must be treated consistently. The Court stated:“The logic is inescapable; if the delay in filing the Notice of Appeal was excusable, and if the consequent delay in seeking leave arose from the time necessarily spent regularizing that Notice of Appeal, then both delays spring from the same root cause and must be treated consistently. To do otherwise would be to elevate technicality over substance and to frustrate the very purpose for which the earlier extension was granted." 29.I am satisfied that the Applicant has provided a satisfactory explanation for the delay. The delay was not due to any deliberate intent to obstruct justice but arose from factors largely outside his control. 30.The Applicant submits that the Respondent will suffer no prejudice if the orders are granted, while he stands to suffer irreparable injustice if denied the opportunity to be heard. I agree. The Applicant's right to be heard and his constitutional right to property under Articles 27, 40, 48, and 50 of the Constitution are weighty considerations. 31.The Respondent's concerns about the length of time this succession cause has been pending and the fact that some beneficiaries have passed on are legitimate. However, these concerns must be balanced against the Applicant's right to appeal. The Respondent will have the opportunity to fully argue their position before the Court of Appeal. 32.Accordingly, the Notice of Motion dated 3rd July 2025 is found to be meritorious giving rise to the issuance of the following orders;a.The Applicant is granted an extension of time to file his appeal against the judgment delivered by the Honourable Justice H. K. Chemitei on 19th October 2023 in this Succession Cause to the Court of Appeal.b.The Applicant's appeal against the said judgment shall lie to the Court of Appeal as of right, without the need to first obtain leave.c.The Applicant is directed to file the Notice of Appeal and the Memorandum of Appeal within fourteen (14) days from the date of this ruling.d.The costs of this application shall be costs in the intended appeal. 33.It is so ordered. DATED, SIGNED AND DELIVERED AT NAKURU THIS 9TH DAY OF JULY, 2026.J. K. SERGONJUDGEIn the presence of:Jamleck/Rutoh C/ANjoroge holding brief for Mwangi for AdministratorOdiya and Ndong for Objector/Applicant