[2025] KEHC 4095 (KLR)

In re Estate of Ndungu Wamwea alias Ndungu Wamweya (Deceased) (Miscellaneous Civil Case E148 of 2024) [2025] KEHC 4095 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KEHC 4095 (KLR)

Republic of Kenya

In the High Court at Thika

Miscellaneous Civil Case E148 of 2024

FN Muchemi, J

March 27, 2025

IN THE MATTER OF THE ESATTE OF NDUNGU WAMWEA alias NDUNGU WAMWEYA (DECEASED)

Between

Stephen Wamwea Waithaka Ndungu

Applicant

and

John Kinuthia Waithaka

1st Respondent

Daniel Mwangi Ndungu

2nd Respondent

Mary Wambui Ndungu

3rd Respondent

Ruling

Brief facts 1. This application dated 17th September 2024 seeks for orders of leave to file an appeal out of time against the ruling in Thika CM Succession Cause No. 204 of 2017 delivered on 23rd July 2024. The applicant further seeks for orders of stay of execution of the said ruling.

2. The respondents opposed the application and filed a Replying Affidavit dated 5th December 2024.

Applicant’s Case 3. The applicant state that ruling in Thika CM Succession Cause No. 204 of 2017 was delivered on 23rd July 2024 whereas the court below dismissed his Summons for Revocation dated 2nd June 2023. The applicant avers that the ruling had seemingly dismissed the Summons for Revocation. However, upon reading the ruling further, he noted that the trial magistrate had granted one of the prayers to the effect that L.R. No. Loc.5/Kangunduini/1294 do revert to the deceased’s name for distribution amongst the three households.

4. The applicant avers that the reasoning given by the learned trial magistrate confused him as the learned trial magistrate stated that if the respondents wished to have the estate redistributed, they ought to have filed an application for review of the confirmation of grant orders, which they failed to do. Upon perusal of the court record, the learned trial magistrate came to the finding that the respondents were effectively served but they elected not to attend court. Neither did they file an affidavit of protest in opposition of the application for Confirmation of grant.

5. The applicant states that the honorable court found that the applicants were estopped from claiming that the deceased asset was wrongly distributed. Despite the finding of the said court that the applicants were estopped from claiming that the property was wrongfully distributed, the court went ahead and allowed their prayer to the effect the property do revert to the deceased’s name for distribution amongst the three households.

6. The applicant avers that he has an arguable appeal and if granted a chance he shall canvass the same. The applicant further states that if the orders sought are not granted, he shall suffer irreparably as the intended appeal shall be rendered nugatory.

The Respondents’ Case 7. The respondents state the application lacks merit and is totally defective and an abuse of the court process.

8. The respondents state that they have filed an application for review of the ruling delivered by the trial magistrate on 23rd July 2024 in Thika Succession Cause No. 204 of 2017. The respondents state that status quo in the said matter has been maintained since the delivery of the ruling. The said application for review shall be mentioned on 6th February 2025 for directions confirming filing of submissions.

9. The respondents pray that the instant application be held in abeyance until the application in Thika Succession Cause No. 204 of 2017 is heard and determined. The respondents state that the applicant will not suffer any irreparable damages if the application is held in abeyance.

10. Directions were issued that the application be canvassed by way of written submissions and from the record only the applicant complied. He filed his submissions on 28th February 2025.

The Applicant’s Submissions. 11. The applicant submits that the delay in filing the notice of appeal was not intentional but was caused by the fact that the ruling dismissed the Summons for Revocation dated 2nd June 2023 with no orders as to costs. However upon reading the ruling further, the magistrate had granted one of the prayer that L.R. Loc.5/Kangunduini/1294 do revert to the deceased’s name for redistribution amongst the three households. The applicant submits that the reasoning given by the trial court was uncertain as to the court’s reasoning. The applicant further submits that he tried to resolve the uncertainty with the respondents out of court but they refused insisting that the property ought to revert to the deceased’s name for redistribution.

12. The applicant relies on the case of Edith Gichugu Kine vs Stephen Njagi Thoithi [2014] eKLR and submits that extension of time is not a right of a party but an equitable remedy that is only available to a deserving party at the discretion of the court. The applicant argues that he is a deserving party as the delay was not intentional because it was caused by the ambiguity and uncertainty of the ruling and trying to pursue an alternative resolution to the same with the respondents did no bear fruit. The finding and reasoning of the court that the respondents are estopped from claiming that the property was unevenly distributed and yet granting their prayer for the property to revert is a puzzle that ought to be unravelled by the instant court on appeal.

13. The applicant submits that the respondents will not be prejudiced in any way if the orders sought are granted whereas he will be highly prejudiced if the orders are not granted if the intention of the court below was not to grant the prayer to revert the property to the name of the deceased for redistribution.

14. The applicant submits that the delay in filing the notice of appeal was not intentional and that the prayer for stay of execution should be granted to prevent the respondents from executing the ruling. If the orders are denied, the applicant says that his appeal shall be rendered nugatory exposing them to irreparable damage. The applicant relies on Order 42 Rule 6 of the Civil Procedure Rules and the case of Butt vs Rent Restriction Tribunal [1982] KLR 417 and submits that he is set to suffer irreparable damage if stay is not granted as the respondents will carry out the orders in the ruling and thus rendering the appeal nugatory.

The Law Whether the court should exercise its discretion to grant the applicant leave to file his appeal out of time; 15. Section 79G of the Civil Procedure Act states:-Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

16. It is clear from the wording of section 79G of the Civil Procedure Act that before the court considers extension of time, the applicant must satisfy the court that that he has good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of Diplack Kenya Limited vs William Muthama Kitonyi [2018]eKLR an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so.

17. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:-“The underlying principles a court should consider in exercise of such discretion should include:-a.Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;b.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;c.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;d.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;e.Whether there will be any prejudice suffered by the respondent if the extension is granted;f.Whether the application has been brought without undue delay.

18. Similarly in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015]eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following:-“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”

19. The ruling in the court below was delivered on 23rd July 2024 and the applicant filed the current application on 17th September 2024. This is approximately twenty five (25) days outside the time limited for filing an appeal. The applicant has argued that the reason for the delay is that parties were trying to solve the matter outside court. In my considered view, the reason advanced by the applicant for the delay does not amount to a plausible explanation. However, I have perused the court’s ruling delivered on 23rd July 2024 and noted that although the trial court dismissed the application for revocation, it ordered that L.R. Loc. 5/Kagunduini/1294 do revert to the deceased’s name for redistribution amongst the three households. The orders as given by the trial court are contradictory and would prejudice the parties herein and thus there is need for the applicant to be allowed to file an appeal.

20. I have further perused the draft Memorandum of Appeal and noted that the grounds of appeal raise arguable points of law. Thus, without delving into the merits of the appeal, the intended appeal has high chances of success. Accordingly, I find that the applicant has established to the satisfaction of the court that extension of time to enable him file his appeal ought to be positively considered.

Whether the applicant has satisfied the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules for stay of execution pending appeal. 21. It is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates:-1. “No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but the court appealed from may for sufficient cause order stay of execution of such decree or order and whether the application for such stay shall have been granted or refused by the court appealed from the court to which such appeal is preferred shall be at liberty on application being made to consider such application and to make such order thereon as may to it seem just and any person aggrieved by an order of stay made by the court from whose decision the Appeal is preferred may apply to the appellate court to have such orders set aside.2. No order for stay of execution shall be made under sub rule 1 unless:-a.The Court is satisfied that substantial loss may result to the 1st Applicant unless the order is made and that the application has been made without unreasonable delay; andb.Such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.

22. Thus under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that:1. Substantial loss may result to him/her unless the order is made;2. That the application has been made without unreasonable delay; and3. The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.

23. Substantial loss was clearly explained in the case of James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR:-“No doubt in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.

24. The applicant states that he shall suffer irreparably if the orders of stay are not allowed and the intended appeal shall be rendered nugatory. The applicant argues that the trial court went ahead and allowed for the property to revert to the deceased’s name for redistribution despite it holding that the respondents were estopped from claiming that the deceased’s estate was wrongly distributed.

25. On perusal of the trial court’s ruling delivered on 23rd July 2024, I have noted that although the trial court dismissed the application for revocation, it ordered that L.R. No. Loc. 5/Kagunduini/1294 do revert to the deceased’s name for redistribution amongst the three households. The orders as given by the trial court are lacking of clarity and are contradictory. If the said orders were to be implemented, they would cause confusion and render the appeal nugatory.

26. It is my considered view that the applicant has demonstrated that he stands to suffer substantial loss should the orders be refused.

Has the application has been made without unreasonable delay 27. The ruling was delivered on 23rd July 2024 and the applicant filed the instant application on 17th September 2024 which is approximately two months from the time the ruling was delivered. Thus a delay of two months is not inordinate and unreasonable. As such, the application was filed timeously.

Security of costs. 28. The purpose of security was explained in the case of Arun C. Sharma vs Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR the court stated:-“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…..Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for the due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.

29. Evidently, the issue of security is discretionary and it is upon the court to determine the amount or value of the security required. The applicant has not offered any form of security for the performance of the decree.

30. It is trite that the right of appeal must be balanced against an equally weighty rigid right of the plaintiff to enjoy the fruits of the judgment delivered in his favour. In the case of Samvir Trustee Limited vs Guardian Bank Limited [2007] eKLR the court stated:-“The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment. It is a fundamental factor to bear in mind that a successful party is prima facie entitled to fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive conclusion.”

31. The court in granting stay has to carry out a balancing act between the rights of the two parties. The question that arises is whether there is just cause for depriving the respondents their right of enjoying their judgment. On the grounds of appeal, it is my considered view that they raise arguable points of law.

32. In conclusion, I find that the applicant has met the threshold of granting stay of execution pending appeal. Accordingly, the application dated 17th September 2024 has merit and is hereby allowed.

33. The appeal to be filed within 14 days and in default, the orders to be vacated.

34. It is hereby so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 27TH DAY OF MARCH 2025. F. MUCHEMIJUDGE