https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8054

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **SUCCESSION MISC. APPLICATION NO. E009 OF 2025** **IN THE MATTER OF THE ESTATE OF ISONI WERUNGA (DECEASED)** **ISAAC MUKOYA ISONI……………………….……………………….APPLICANT** **VERSUS** **AINEAH NASIREMBWA……………………………..………………….RESPONDENT** **RULING** 1. Before this Court is the Notice of Motion dated 9th April 2025 brought pursuant to Section 79G of the Civil Procedure Act seeking principally an order that time be enlarged to enable the Applicant file an appeal out of time against the ruling delivered on 24th November 2022 in Butali Succession Cause No. 31 of 2020. 2. The application is premised on the grounds appearing on its face and is supported by the affidavit of the Applicant, Isaac Mukoya Isoni, sworn on 9th April 2025. 3. The Applicant contends that the trial court erroneously introduced the Respondent, whom he describes as a purchaser and not a beneficiary of the estate, into the succession proceedings thereby stalling distribution of the estate. He further avers that he was unwell for a considerable period and was therefore unable to lodge the appeal within the statutory period. 4. The Respondent opposed the application through a Replying Affidavit sworn on 27th June 2025. He contends that the application has been brought after an inordinate delay of approximately two years and six months; that the Applicant has not produced any medical evidence to support his claim of illness; and that during the period he allegedly suffered ill health, he actively prosecuted an application for review of the same ruling before the subordinate court. 5. The Respondent further argues that having elected to pursue review of the impugned ruling, the Applicant cannot now seek to appeal against the same decision and that the intended appeal is therefore incompetent. **ISSUES FOR DETERMINATION** 1. Having considered the pleadings, affidavits and submissions on record, the following issues arise for determination: 2. Whether the Applicant has demonstrated sufficient cause to warrant extension of time under Section 79G of the Civil Procedure Act. 3. Whether the delay of approximately two years and six months has been satisfactorily explained. 4. Whether the Applicant’s previous pursuit of review affects his right to appeal. 5. Whether the Intended Appeal is Arguable 6. What orders should issue as to costs. **ANALYSIS AND DETERMINATION** 1. **Whether the Applicant has demonstrated sufficient cause to warrant extension of time under Section 79G of the Civil Procedure Act.** 2. Section 79G of the Civil Procedure Act provides that every appeal from a subordinate court to the High Court shall be filed within thirty days from the date of the decree or order appealed against, 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. 3. In **Leo Sila Mutiso v Rose Hellen Wangari Mwangi, Civil Application No. Nai 255 of 1997**, the Court held that in exercising discretion to extend time, the court should consider: 4. The length of the delay; 5. The reason for the delay; 6. The chances of the intended appeal succeeding; and 7. The degree of prejudice to the respondent. 8. Similarly, the Supreme **Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR** held that extension of time is not a right but an equitable remedy available only to a deserving party who satisfactorily explains the delay. 9. The burden therefore rests upon the Applicant to place before the Court material sufficient to justify the exercise of discretion in his favour. 10. **Whether the delay of approximately two years and six months has been satisfactorily explained** 11. The impugned ruling was delivered on 24th November 2022. The present application was filed on 9th April 2025. The delay is therefore approximately two years and five months. 12. Such delay is undoubtedly inordinate and calls for a satisfactory and credible explanation. 13. The Applicant attributes the delay to ill health. However, beyond the bare allegation that he was unwell, no medical records, treatment notes, hospital cards, discharge summaries or any other documentary evidence have been produced to substantiate the assertion. 14. Courts have consistently held that where illness is advanced as a reason for delay, sufficient evidence must be tendered. Mere allegations are insufficient. 15. In the present case, the Respondent has gone further and deponed that during the same period the Applicant actively prosecuted an application for review of the ruling before the subordinate court. Annexures exhibited by the Respondent support that contention. 16. Significantly, the Applicant did not file any supplementary affidavit to rebut these allegations. The factual assertions therefore remain uncontroverted. 17. In **Trust Bank Limited v Amalo Company Limited [2002] eKLR**, the Court emphasized that a party seeking discretionary relief must provide a plausible and satisfactory explanation for delay. 18. This Court finds that the explanation advanced by the Applicant is unsupported by evidence and is further weakened by the undisputed fact that he was able to pursue review proceedings during the period he claims to have been incapacitated. 19. Consequently, the Court is unable to find that sufficient cause has been demonstrated for the prolonged delay. 20. **Whether the Applicant’s previous pursuit of review affects his right to appeal.** 21. The Respondent argues that the Applicant elected to pursue review before the subordinate court and is therefore barred from appealing against the same decision. 22. Order 45 Rule 1 of the Civil Procedure Rules provides that a person aggrieved by a decree or order may apply for review where no appeal has been preferred. 23. The law discourages a litigant from pursuing both review and appeal against the same decision simultaneously. The rationale is that a party must elect one of the available remedies. 24. In **Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR**, the Court observed that a litigant cannot pursue review and appeal concurrently against the same decision as the remedies are mutually exclusive. 25. The material placed before this Court shows that the Applicant first pursued review before the subordinate court. The ruling dismissing the review application has not been challenged before this Court. 26. While pursuit of review may not in every case completely extinguish the right of appeal, it remains a relevant factor in considering whether discretion should be exercised in favour of an applicant seeking leave to appeal out of time. 27. In the present circumstances, the Applicant’s conduct demonstrates that he consciously elected to pursue review rather than appeal and only turned to the appellate process after his efforts before the subordinate court failed. 28. This Court agrees with the Respondent that the present application bears the hallmarks of an afterthought. 29. **Whether the Intended Appeal is Arguable** 30. The Applicant contends that the trial court wrongly included a purchaser in the distribution of the estate despite finding that he was not a beneficiary. 31. Without making definitive findings on the merits, this Court acknowledges that the memorandum of appeal raises issues relating to the treatment of purchasers’ interests in succession proceedings. 32. However, even where an intended appeal appears arguable, extension of time cannot be granted in the absence of a satisfactory explanation for delay. 33. In the present matter, the inordinate delay and absence of a credible explanation outweigh any arguable issues that may arise in the intended appeal. 34. The Applicant has failed to satisfactorily explain the delay of approximately two years and five months in filing the present application. 35. The allegation of illness has not been supported by any medical evidence and is contradicted by the undisputed fact that the Applicant actively prosecuted review proceedings during the same period. 36. The Court is therefore not persuaded that sufficient cause has been shown to warrant the exercise of discretion under Section 79G of the Civil Procedure Act. 37. Consequently, the Notice of Motion dated 9th April 2025 lacks merit. 38. The same is hereby dismissed with costs to the Respondent. 39. It is so ordered. 40. The file is closed. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 9TH DAY OF JUNE, 2026.** **S.N MBUNGI** **JUDGE** **In the presence of:-** **CA:** Zilda/Velma Parties absent though aware of the Ruling date. The Court Assistant to upload the Ruling on the CTS forthwith.