https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10960

**REPUBLIC OF KENYA** **IN THE HIGH OF KENYA AT MERU** **MISC. CIVIL APPLICATION NO. E048 OF 2025** **GODFREY MWIRIGI IKIAO………………..……………….1ST APPLICANT** **WILLIAM KITHINJI …………………………………………2ND APPLICANT** **VERSUS** **JOSEPH KINOTI…...........................................................RESPONDENT** **RULING** 1. For determination is the Notice of Motion dated 19/5/2025 under**Section 1A, 1B, 3A, 3B and 63 of the Civil Procedure Act, Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules,** seeking that: 1. **Spent.** 2. **This Honourable Court be pleased to enlarge the time to appeal against the Judgment and Confirmed Grant in Meru CM Succession Cause No. 291 of 2018 delivered on 6/2/2024.** * 1. **Spent.** 2. **This Honourable Court be pleased to stay the execution of the Judgment, Confirmed grant and any other subsequent orders in** **Meru CM Succession Cause No. 291 of 2018 pending the inter partes hearing and determination of the intended appeal.** * 1. **Costs for and incidental to this application be costs in the intended appeal.** 1. The application is premised on the grounds that the Respondent filed summons for Confirmation of Grant, and the Applicants filed a protest over the same, since the Respondent proposed sharing the estate equally among the 3 houses. In contrast, the Applicants proposed sharing in accordance with the number of units in each house. The Respondent’s house had only 2 units, while the Applicant’s houses had 7 and 6 units respectively. The trial Court’s decision to distribute the estate equally among the houses is in contravention of **Section 40 of the Law of Succession Act,** and unless the orders sought are granted, the Applicants and other beneficiaries will suffer prejudice and irreparable damages. 2. The Respondent swore a Replying Affidavit on 7/7/2025 in opposition to the application. He averred that the Applicants are only intent on delaying him and other beneficiaries from enjoying the fruits of the Judgment that is now more than 1 ½ years old, without any good cause. He accused the Applicants of inordinately delaying in seeking extension to appeal out of time, and thus underserving of the discretion of the Court. No explanation has been rendered for the said delay and/or what prejudice the Applicants will suffer if the application is denied. He further accused the Applicants of abusing the Court process and material non-disclosure by applying for leave to appeal against the very decision which they have sought to be revoked in Succession Cause No. 291 of 2018. 1. The application was canvassed by way of Written Submissions, which were duly filed by Counsel. **Determination** 1. After considering the application, the response and the submissions by Counsel together with the authorities relied on, I find the sole issue for determination to be whether the orders sought should be granted. 2. The underlying principles that a Court should consider in the exercise of its discretion to extend time were underscored by the Supreme Court in **Nicholas Kiptoo Korir Arap Salat –vs- Independent Electoral &** **Boundaries Commission & 7 Others (2014) eKLR** as follows: **“1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court; 2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court; 3. Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; 4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; 5. Whether there will be any prejudice suffered by the Respondents if the extension is granted; 6. Whether the application has been brought without undue delay; and 7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”** 1. The instant application was filed on 19/5/2025, while the impugning decision was delivered on 6/2/2024. That delay of approximately 1 year and 3 months is manifestly inordinate and therefore unreasonable. More significantly, no explanation whatsoever has been proffered for the inexcusable delay, and thus, there is no basis upon which the discretion of the Court can be exercised. I thus find that the balance of convenience tilts in favour of denying the extension sought. 1. Suffice it to add, there pends determination before the trial Court summons for Revocation of the very decision sought to be upset on appeal. I find that the institution of parallel proceedings before two different Courts, in a bid to secure a favourable outcome, amounts not only to abuse of the Court process but also to forum shopping, which is impermissible. Such conduct carries a real risk of yielding conflicting determination by the two Courts, thereby undermining the integrity of the Judicial process. 1. Having denied the quest for enlargement of time to appeal. The foundation upon which the prayer for stay is predicated collapses. 2. Accordingly, the application dated 19/5/2025 is in want of merit, and it is hereby dismissed with costs to the Respondent. **DATED AND DELIVERED AT MERU THIS 21st DAY OF JULY, 2026.** **S.M. GITHINJI –JUDGE** **21/7/2026** **In the presence of:** Miss Mugo for the Applicant Mr. Ashaba for the Respondent (absent).