[2025] KEHC 1309 (KLR)

In re Estate of Jephitha Muyu Ndinwa (Deceased) (Succession Cause 429 of 2012) [2025] KEHC 1309 (KLR) (27 February 2025) (Ruling)

Neutral citation: [2025] KEHC 1309 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Succession Cause 429 of 2012

RM Mwongo, J

February 27, 2025

Between

John Mwea Muyu

Petitioner

and

Mary Wanjiku Muyu

Protestor

Ruling

1. The applicant filed a summons (General) dated 10th June, 2021 seeking the following orders:1. Spent2. That this Court do grant the applicant leave to file an appeal against the judgment of the Court dated 20/02/2020 outside the stipulated period.3. That costs of this application be in the intended appeal.

2. The application is grounded on the Supporting Affidavit of John Mwea Muyu and the following grounds: -a.The application was aggrieved by the Judgment of this Court issued on the 20/02/2020 and wishes to appeal to the Court of appeal.b.The applicant was sickly and financially incapacitated to file the appeal within the stipulated period.c.The respondent will not be prejudiced if the orders sought herein are granted.

3. The applicant’s Supporting Affidavit contains the following major averments:i.That he was aggrieved by the Judgement of the Court delivered on the 20/02/2020 but due to his poor medical condition and limited finances, he was unable to instruct his advocate to lodge an appeal against the said judgment.i.That having now reasonably recovered and he is able to file and prosecute his intended appeal.ii.That failure to file an appeal on time was not deliberate, but was occasioned by factors beyond his control.iii.That the respondent shall not be prejudiced.

4. The Protestor/Respondent opposed the application on the grounds that:a.The application is frivolous, vexatious and an abuse of the Court Process.b.The Judgment herein was delivered on 20. 02. 2020 in presence of the parties and their Advocates on record and hence the Applicant had the opportunity to seek leave to Appeal immediately or within reasonable time as stipulated under the law and hence the Application dated 10. 6.2021 has been brought with inordinate delay.c.The Application dated 10. 6.2021 is a mere afterthought as the allegations of sickness cannot be explained since there is no proper medical documents in support of the allegation and in any event, the letter dated 20. 4.2021 cannot explain the inordinate delay of over 22 months since the delivery of Judgment on 20. 2.2020.

5. The respondent’s Replying Affidavit contains the following major averments.i.That the Judgment herein was duly delivered on 20. 2.2020 and the estate of the deceased comprising L.R Mutithi/Chumbiri/645 was shared out between the respondent and his sister Deborah Wangithi at 2. 3 Acres and 0. 5 acres respectively and a certificate of confirmed grant was duly issued on 10. 3.2020. ii.That later the certificate of confirmed grant was rectified by an order of Court dated 10. 12. 2020 as there was a problem with the real names of his sister amongst other orders.iii.That the Applicant was duly represented by able counsel Mr. H.K Ndirangu and hence cannot plead ignorance during the Court proceedings and even upon granting of orders to execute the certificate of confirmed grant issued herein.iv.That the Applicant had sufficient time to lodge an appeal to the Court of Appeal against the judgement of the Honourable Court delivered herein on 20. 2.2020 or even seek leave to appeal out of time but neither he nor his advocates on record ever initiated the process of appeal.v.That the allegations that the Applicant has been unwell is made in bad faith and amounts to a frivolous excuse since no medical records capable of authentication were availed and, in any event, the documents dated 30. 4.2021 was made too late in the day when this cause was long determined and hence same is a forgery.vi.That the estate herein has long since been distributed amongst lawful beneficiaries after which the respondent sub-divided his share into L.R Mutithi/Chumbiri/5051 and 5052 and sold the same to Anthony Kamau Githu and Nancy Muthoni Goko who acquired clean title deeds and are in occupation of their respective parcels of land. As such, there is no remaining estate capable of being litigated upon.

Submissions 6. The parties filed submissions as directed by the Court.

7. The Applicant submitted that the right to appeal against the judgement of this Court is enshrined in the constitution. That the applicant was however unable to exercise that right due to sickness. That he moved the Court to extend his judicial discretion and grant him leave to file the appeal out of time. The reason for the delays illness and was absolutely out of control by the applicant.

8. Further, the applicant submits that the respondent will not suffer any prejudice if the application dated 10/6/2021 is allowed particularly in view of the fact that she is already enjoying the fruits of her judgment. The subject matter herein is land which is an immovable property and cannot be alienated by the applicant during the period the intended appeal will take to conclude since he is not a decree holder of the said land parcel.

9. The respondent’s submission was essentially that the application has no merit and ought to be dismissed with costs. That the explanations given are unsatisfactory to enable the Court exercise its discretion in its favour.

Analysis and Determination 10. The principles to be considered in exercising the discretion whether or not to enlarge time were considered in the case of First American Bank of Kenya Ltd vs. Gulab P. Shah & 2 others Nairobi (Milimani) HCCC NO.2255 of 2000 [2002] 1 EA65. The principles which the Court will consider are:i.The explanation, if any, for the delay.ii.The merits of the contemplated action, whether the matter is arguable one deserving a day in Court or whether it is frivolous one which would only result in the delay of the course of justice.iii.Whether or not the respondent can adequately be compensated in costs for prejudice that he may suffer as a result compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant.

11. The powers of the court in deciding an application to seek leave to file an appeal out of time are discretionary and unfettered. In the case of Mwangi vs Kenya Airways Ltd [2003] eKLR the Court of Appeal expressed itself on the exercise of discretion as follows:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether or not to grant an extension of time are; first, the length of the delay; secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.”

The length of the delay 12. In the present case, the Judgment herein was delivered on 20. 2.2020 in presence of the parties and their advocates on record. Thus, the Applicant had the opportunity to seek leave to appeal immediately or within a reasonable time as stipulated under the law. Hence the application dated 10. 6.2021 has been brought with inordinate delay coming over sixteen (16) months later.

The reason for the delay 13. The applicant deposed in his supporting affidavit that he was aggrieved by the judgment of the Court delivered on the 20. 2.2020. However, due to his poor medical condition and limited finances, he was unable to instruct his advocate to lodge an appeal against the said judgment.

14. On her part, the respondent submitted that the alleged medical letter is dated 20. 4.2021 over a year after delivery of the judgment. That if at all the applicant was ill, then he should prove that at the time the judgment was delivered, he was so sick, as to be unable to comprehend judgment and instruct his advocate.

15. Section 58 of the Interpretation and General Provisions Act provides;“where no time is prescribed or allowed within which anything shall be done, such thing shall be done without unreasonable delay, and as often as due occasion arises”In the circumstances, the applicant has not proved that his poor medical condition prevented him from filing the appeal in time.

16. In the case of Anthony Maina Kinyua and another v Joseph Mwangi Njurai [2021] eKLR it was stated that:“The applicant herein had not passed the test of acting without unreasonable delay given that he took three (3) months to file this application from the date he learnt of the existence of the ruling on 22/02/2021. As argued by the respondent, this application seems to be an afterthought.”

The Chances of the appeal succeeding if the application is granted 17. The applicant has not attached a draft Memorandum of Appeal highlighting his grounds of appeal. As such, nothing can be said about the chances of appeal succeeding. Further, the applicant has not indicated the reasons for the appeal other than in his submissions where he has stated that the subject matter herein is land which is an immovable property and cannot be alienated by the applicant during the period of the intended appeal.

18. In the case of re Estate of Erasto Kiwinga Tole (Deceased) [2022] eKLR Onyiengo J held:“from a glimpse of the draft memorandum of appeal and the submissions, the dispute revolves around distribution of the estate to daughters against customs. I do not find this to be an arguable ground as distribution of an estate is legally made to children, spouse/s or any other dependent. The issue of gender is irrelevant. To that extent, I do not find the appeal arguable.”In the present case, no appeal or draft grounds of appeal were filed to aid the Court in its determination.The degree of prejudice to the respondent if the application is granted

19. The respondent submitted that if the application herein is allowed, the Respondent will suffer prejudice as the winding up of the estate is already completed and no monetary amount can compensate the estate adequately.

Conclusions and Disposition 20. In light of the foregoing discussion, the applicant has not demonstrated any sufficient reasons why the respondent should be kept away from enjoying the fruits of his judgment.

21. Accordingly, the application is dismissed in its entirety and any interim orders are hereby set aside.Orders accordingly.

DELIVERED VIRTUALLY AT KERUGOYA HIGH COURT THIS 27TH DAY OF FEBRUARY, 2025_________________________R. MWONGOJUDGEDelivered in the presence of:Ms. Naliaka holding brief for Kiama for ApplicantMr. Kahiga for RespondentFrancis Munyao - Court Assistant