Kihuri & 2 others v Kabira & 2 others (Civil Application E051 of 2026) [2026] KECA 1568 (KLR) (31 July 2026) (Ruling)

**IN THE COURT OF APPEAL** **AT NYERI** **(CORAM: M’INOTI, JA. (IN CHAMBERS))** **CIVIL APPLICATION NO. E051 OF 2026** **BETWEEN** **JOHN GITONGA KIHURI …………..…………………… 1ST APPLICANT GEOFFREY MUGO KIHURI ……….…………..….…… 2ND APPLICANT JAMES MUTAHI KIHURI …………..………..….…….. 3RD APPLICANT** **AND** **STEPHEN KABIRA KIHURI (A)** **KAGWANJA …………………………….………………… 1ST RESPONDENT TERESA NJERI KABIRA …………..…..…………….. 2ND RESPONDENT STEPHEN KABIRA WAMBUI ………………....…….. 3RD RESPONDENT** *(Application for extension of time to appeal from the ruling and order of the High Court of Kenya at Nyeri (Magare, J.) dated 17th February 2026* **in** **HCSC No. 126 of 2002)** **\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*** **RULING** 1. On 17th February 2026 the ***High Court of Kenya*** at ***Nyeri (Magare, J.)*** rendered a ruling in ***High Court Succession Cause No. 126 of 2006*** and dismissed an application by the applicants herein, who were seeking an order for revocation of a confirmed grant of representation to the estate of ***Dominic Kihuri Kabira (deceased)*** issued on 18th May 2023 to the respondents. 2. The applicants were aggrieved by the judgment of the High Court and elected to appeal to this Court. As the law was then understood, the applicant’s believed that did not have an automatic right of appeal to this Court from a decision of the High Court in a succession cause. Accordingly, they did what every litigant in their position was doing, namely, to make an application for leave to apply to this Court. They did that vide an application dated 3rd March 2026, barely 14 days after the date of the judgment of the High Court. 3. On 31st March 2026, the Supreme Court rendered its judgment in ***Wandi v. Muchira*** [2026] KESC 29 (KLR) and held that no leave was required to appeal to this Court from a decision of the High Court exercising its original jurisdiction in a succession cause. The Court rendered itself thus: ***“We therefore come to the inevitable conclusion that there is no legal basis for imposing a requirement of leave as 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. Such a requirement, not being anchored in either the Constitution or statute, cannot properly be sustained.”*** 1. In short, the applicants then realise that they did not have to pursue their application for leave to appeal, because, instantly, they had an automatic right of appeal. They did the next reasonable thing, which was to withdraw the application for leave to appeal. That they did on 18th May 2026. 2. Of course, by then the prescribed time for appealing when a party has an automatic right of appeal, had long expired. On 3rd June 2026, about 16 days after withdrawing the application for leave to appeal, the applicants lodged the present application for extension of time to appeal. 3. In the affidavit in support of the application, the applicants have explained that their failure to file the appeal within the prescribed time was caused by their pursuit of leave to appeal, which the prevailing interpretation of the law held was necessary, until the Supreme Court decided otherwise. They also state that the delay is not inordinate; that they stand to suffer serious prejudice if they are denied an opportunity to exercise their right of appeal to this Court; that they have lived for long on a property of the estate of the deceased, namely, ***Othaya/Kihugiru/561/4***, which they have extensively developed; and that there is a risk of the respondents transferring the net estate by transmission, which would negate the intended appeal. 1. In their written submissions dated 14th July 2026, the applicant’s reiterated the facts set out above and cited the rulings in ***Henry***  ***Mukora Mwangi v. Charles Gichina Mwangi***, Civil Application No. Nai. 26 of 2004 and ***Mongira & Another v. Makori & Another*** [2005] 2 KLR 103, regarding the principles that guide the Court in an application for extension of time under ***rule 4*** of the ***Court of Appeal Rules****.* 1. Although duly served with the hearing notice on 6th July 2026, the respondents did not respond to the application. 2. I have carefully considered this application. The factors that guide the Court in an application for extension of time under rule 4 of the Court of Appeal Rules include the following: 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. ***the length of delay;*** 5. ***the reason(s) for the delay;*** 6. ***the prospects of the appeal if the application is granted; and*** 7. ***the prejudice that is likely to be suffered by each party.*** (See ***Nicholas Kiptoo Korir arap Sarat v. IEBC & 7 Others*** [2014] eKLR and ***Sila Mutiso v. Rose Hellen Wangari*** ***Mwangi*** [1999] 2 EA 231). 1. The judgment that the applicants wish to appeal was rendered on 17th February 2026. On 3rd March 2026, approximately a fortnight after the judgment, the applicants applied in this Court for leave to appeal, which was then deemed necessary. They withdrew that application on 18th May 2026 after the Supreme Court held on 31st March 2026 that leave to appeal was not necessary. On 3rd June 2026, about 16 days after withdrawing the application for leave to appeal, the applicants filed the present application for extension of time to lodge their appeal. 2. I find that the delay involved is not inordinate and that the applicants have in any event sufficiently and candidly explained the reason why they were not able to lodge the appeal within the prescribed time after delivery of the judgment of the High Court. I also find that the intended appeal is not frivolous. Further, the respondent having failed to respond to the application, I have no basis for holding that they stand to suffer more prejudice than the applicants. 1. In the result, I allow the notice of motion dated 3rd June 2026 and direct the appellants to file and serve the notice of appeal and the intended appeal within ***twenty one (21) days*** from the date of this ruling. Costs of the application shall abide the outcome of the intended appeal. It is so ordered. **Dated and delivered at Nyeri this 31st day of July, 2026.** **K. M’INOTI** **................................... JUDGE OF APPEAL** *I certify that this is a true copy of the original.* ***Signed*** ***DEPUTY REGISTRAR***