https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9673

Kimeu v Ngali (Civil Appeal E163 of 2025) [2026] KEHC 9673 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9673 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E163 of 2025 AN Ongeri, J June 25, 2026 Between Grace Muteve Kimeu Appellant and Amos Muthiani Ngali Respondent Ruling 1.This application coming for consideration in this Ruling is the one dated 20/5/2025 seeking leave to file a Memorandum of Appeal out of time against a judgment delivered on 2nd April 2025 in Machakos Chief Magistrate's Civil Suit No. 742 of 2019. 2.The Applicant, who is dissatisfied with the entire judgment, explains that the 22-day delay in filing the appeal was occasioned by financial constraints, as she had to prioritize school fees for her two children over instructing her advocates to lodge the appeal. 3.Alongside the extension of time, the Applicant urgently prays for status quo orders to preserve the suit property, Plot No. 864 Katelembo Athiani Maputi Farming Society, and her residency thereon, pending the hearing and determination of the application and the intended appeal, 4.She expresses apprehension that without such orders, the Respondent may evict her and her children, or alienate, charge, lease, or subdivide the property, rendering the appeal nugatory. 5.The application is supported by an affidavit and brought under the inherent power of the court, invoking the discretionary provisions of Sections 1A, 1B, 3A, and 95 of the Civil Procedure Act, alongside Order 50, Rule 6 of the Civil Procedure Rules, which collectively empower the court to enlarge time and make orders for the ends of justice. 6.The Applicant contends that her intended appeal has high chances of success, the delay is excusable, and no prejudice will be suffered by the Respondent if the orders sought are granted 7.The application is supported by the appIlcant’s supporting affidavit in which she depose as follows;i.That the deponent instructed her advocates to file a claim being CMCC no. 742 of 2019 - machakos concerning plot no. 864 katelembo athiani mavuti, which the respondent and she had acquired and developed while they lived together as man and wife.ii.That judgment was delivered on 2/4/2025 before hon. james omburah, and being dissatisfied, the deponent intimated her intention to appeal to her advocates, and she was informed that she had 30 days to file an appeal, which expired on 3/5/2025.iii.That, unfortunately, the deponent was unable to facilitate the necessary advocates’ instructing fees for the appeal within the timeline because she is a mother of two children attending full care academy, grade 5 and 6, with the one in grade 6 now a candidate, and schools opened on 30/4/2025, so she prioritised paying school fees and related expenses amounting to approximately ksh. 50,000/- to ensure the minors remained in school.iv.That the deponent is a civil servant, a teacher employed by the teachers service commission, with a monthly income, and this amount, together with advocates’ fees, was a substantial amount for her, so she had to organise her finances accordingly, thereby causing a delay of 20 days in filing the appeal, and she prays that this may not be held against her.v.That the deponent requests the honourable court to extend time and grant her leave to appeal out of time against the judgment delivered in cmcc no. e742 of 2019.vi.That the deponent is advised by her advocates, which advice she believes to be true, that her appeal has high chances of success since she is a high school teacher by profession employed by the teachers service commission at mumbuni high school, and she had produced sufficient evidence to show that she took a loan and deposited the amount to the respondent’s bank account towards the acquisition and development of the suit property while they lived together as man and wife.vii.That the deponent is advised by her advocates, which advice she believes to be true, that the court held that once presumption of marriage was not proved, dealing with the issue of contribution and distribution of the suit property was like flogging a dead horse, and thereby failed to make a substantive determination on the issue, which is currently against the set out supreme court precedence, hence her appeal has high chances of success.viii.That at the moment, the deponent’s minor children (children of the respondent and herself) and she reside in the suit property, and the children attend full care academy which is a walking distance from the suit property, and she is apprehensive that if the court does not issue orders to preserve the status quo, the respondent shall evict her from the suit property, proceed to dispose of, alienate, or subdivide the property, thereby rendering the appeal a mere academic exercise.ix.That the deponent’s belief is based on the fact that the respondent’s agents have been coming to the suit property while she is away at work and, granted access by the respondent, taking household items and selling them.x.That the deponent has already made a report at the police station with ob no. 03/09/05/2025, and it is therefore her fear that if he is not stopped by the court, the respondent will also dispose of the suit property, rendering the present appeal nugatory.xi.That the delay in filing the appeal is a mere 25 days, which has been explained, and she prays that the court does excuse the same and grant her leave to appeal out of time.xii.That the present application has been made in good faith and the respondent shall not be prejudiced if the orders sought are granted. 8.The parties filed written submissions as follows; The applicant submitted that she seeks an extension of time to file a Memorandum of Appeal against a judgment delivered on 2 April 2025. 9.The Applicant explains that she was advised to appeal within 30 days, a deadline that expired on 3 May 2025, but she was unable to act within that period due to financial constraints. 10.She states that she had to prioritize paying school fees for her two children, whose school reopened on 29 April 2025, and that she is the sole provider for their education. 11.After paying those fees, she could not afford the advocate's instructions fees for the appeal and had to wait for the following month's salary to raise the necessary funds, resulting in a delay of 25 days. 12.The submissions contend that this delay is reasonable and sufficiently explained, as the Applicant had to balance her children's best interests against the need to file the appeal. 13.On the merits, it is argued that the intended appeal has high chances of success because the Applicant, a high school teacher employed by the Teachers Service Commission, produced sufficient evidence that she took a loan and deposited the proceeds into the Respondent's bank account for the acquisition and development of the suit property while they lived together as man and wife. 14.The submissions further assert that the Respondent will not suffer prejudice if the orders are granted, whereas the Applicant and her minor children, who continue to use the property reasonably and attend a nearby private school, would be severely prejudiced if the status quo is not preserved. 15.The Applicant also expresses apprehension that the Respondent's agents have been entering the property in her absence, taking and selling household items, and she has reported this to the police, obtaining OB No. 03/09/05/2025. 16.The submissions rely on the Court of Appeal decision in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 1 (KLR), which in turn cites the factors set out in Fakir Mohammed v Joseph Mugambi & 2 others [2005] eKLR (Civil Application No. Nai. 332 of 2004 (Nyr. 32/04)), including the period and reason for delay, the chances of appeal success, prejudice to the respondent, the effect on public administration, and the importance of complying with time limits. 17.The Applicant maintains that all relevant factors weigh in her favour and prays that the application be granted. 18.The respondent’s submissions oppose the applicant’s notice of motion dated 22 May 2025, which seeks extension of time to file a memorandum of appeal out of time and maintenance of status quo orders over Plot No. 864 Katembo Athini Maputi Farming Society. 19.On jurisdiction, the respondent contends that the High Court lacks jurisdiction to hear the application because the orders sought relate to land, which falls within the exclusive purview of the Environment and Land Court, and cites Muthoni & Another v Muhuhi & 3 Others [2025] KEHC 2087 (KLR), where the court held that a miscellaneous application in a land dispute is a nullity, quoting Lord Denning in Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 for the proposition that a void act is incurably bad and every proceeding founded on it collapses, and therefore prays that the application be dismissed with costs. 20.On the merits of extending time, the respondent submits that extension of time is an equitable remedy, not an automatic right, and is reserved for deserving applicants, as affirmed by the Supreme Court in Mombasa County Government v Kenya Ferry Services & 2 Others (Application 29 of 2018) [2019] KESC 50 (KLR). 21.The respondent argues that the applicant’s reason for delay—financial constraints in raising instructions fees—is unsatisfactory, especially given the cost of filing the present urgent application, and relies on Patrick Mbau Karanja v Kenyatta University [2021] eKLR, which cited Joseph Maina Njoroge & 2 Others v Paul Chege Mutahi [2007] eKLR, for the holding that impecuniosity has never been accepted as a valid ground for extending time. 22.The respondent further notes that the applicant has provided no evidence such as bank or M‑Pesa statements to support her claim of financial difficulty, and that the applicant’s children’s school fees are already catered for in an ongoing children’s case (Mks Chief Magistrate Children Case No. 18 of 2019), with the respondent paying those fees. 23.The respondent references Ndungu v Ndungu & Another [2023] KECA 382 (KLR), which emphasized that a party seeking equitable discretion must tender evidence, and that bare assertions of financial inability without proof are insufficient. 24.The delay of over three weeks is described as inordinate and unexplained, and the respondent invokes the principles that equity aids the vigilant, not the indolent, and that litigation must come to an end, citing Halsbury’s Laws of England, 4th Edition, Volume 22, page 273. 25.On the status quo orders, the respondent submits that the applicant is attempting to obtain injunctive relief through the backdoor, yet the respondent has deposed in his replying affidavit that he does not intend to alienate the property but only wishes to complete developing the house to make it habitable. 26.The children’s court orders of 12 September 2019 already require the applicant to provide separate shelter for the minors, and it is not true that she permanently resides on the suit property; she has been renting nearby to monitor the respondent’s activities. 27.The applicant has not demonstrated substantial loss if the orders are not granted, especially since the subordinate court dismissed the suit without issuing any orders, and the respondent contends that the application is a delay tactic, an abuse of process, and lacks merit, and he prays for its dismissal with costs. 28.The issues for determination in this application are as follows;i.Whether the Applicant has demonstrated sufficient cause to warrant the grant of leave to file an appeal out of time.ii.Whether the Applicant is entitled to the conservatory orders sought pending the hearing and determination of the intended appeal. 29.This court has carefully considered the application, the supporting affidavit, the rival submissions of the parties, and the relevant provisions of the law and judicial precedents. 30.The primary issue is whether the Applicant should be granted leave to file a Memorandum of Appeal out of time against the judgment delivered on 2nd April 2025. 31.The principles guiding the court's discretion in such matters are well settled. 32.The power to enlarge time is derived from Order 50, Rule 6 of the Civil Procedure Rules, and the court's inherent power under Section 3A of the Civil Procedure Act to make orders as may be necessary for the ends of justice. 33.The Applicant explains that the delay of approximately 25 days was occasioned by financial constraints, as she had to prioritise paying school fees for her two children over instructing her advocates to lodge the appeal. 34.While the Respondent argues that impecuniosity has never been accepted as a valid ground for extending time, citing Patrick Mbau Karanja v Kenyatta University (supra), this court finds that the Applicant's explanation is not merely a bare assertion but is supported by a plausible and factual narrative of her circumstances as a teacher with a monthly income who had to balance competing financial obligations. 35.This court is persuaded that the delay is relatively short and has been sufficiently explained. 36.Furthermore, the Applicant has argued that her intended appeal has high chances of success, as the trial court failed to make a substantive determination on the issue of contribution to the acquisition and development of the suit property, which she contends is contrary to established Supreme Court precedent. 37.In granting the status quo orders, the court is mindful of the Applicant's apprehension that the Respondent may evict her and her children, or alienate, charge, lease, or subdivide the property, thereby rendering the appeal nugatory. 38.She has also deposed that the Respondent's agents have been coming to the property and taking household items, which she reported to the police. 39.While the Respondent denies these allegations and claims he only wishes to complete developing the house, the court finds that the balance of convenience tilts in favour of preserving the status quo pending the hearing and determination of the intended appeal. 40.The Applicant and her minor children reside on the suit property, and their eviction would cause substantial prejudice that may not be adequately compensated by an award of costs. Accordingly, the application is hereby allowed in the following terms:i.The Applicant is granted leave to file and serve her Memorandum of Appeal out of time within 30 days from the date of this Ruling.ii.An order of status quo is hereby issued, preserving the suit property, Plot No. 864 Katelembo Athiani Maputi Farming Society, and the Applicant's residency thereon, pending the hearing and determination of the intended appeal.iii.Costs of this application shall be in the cause. 41.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNE 2026ASENATH ONGERIJUDGEIn the presence ofMiss Nzisa for the ApplicantMr Kyalo for the RespondentChrispine - Court Assistant