https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7376

Kirubi v Kimani (Family Appeal E006 of 2026) [2026] KEHC 7376 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 7376 (KLR) Republic of Kenya In the High Court at Thika Family Appeal E006 of 2026 FN Muchemi, J May 21, 2026 Between Mary Muringi Kirubi Appellant and Caroline Nyambura Kimani Respondent Ruling 1.The application for determination dated 6th March 2026 seeks for orders of striking out the entire appeal for want of prosecution. 2.The respondent filed a Replying Affidavit dated 18th March 2026 in opposition to the application. The Applicant’s Case 3.The applicant states that Order 42 Rule 35 of the Civil Procedure Rules dictates that where an appeal has been filed and three months lapse without a hearing date set or any action taken, then the same should be struck out for want of prosecution on application by the respondent. The applicant avers that the appellant filed the memorandum of appeal close to five months ago and no action has been taken to prosecute the appeal. 4.The applicant further states that since the appellant never applied for stay of execution of the decision rendered on 24th September 2025, she has already made some steps towards the improvement and maintenance of the said estate. The applicant argues that the appellant has continuously frustrated her ability to make good of the judgment as she has filed an appeal at Kiambu High Court which was later transferred to this court despite having knowledge that there was a high court in Thika. 5.The applicant argues that the memorandum of appeal does not disclose any reasonable cause of action as the same are merely general averments which fail to show where the trial court erred in law or in fact. The applicant further argues that the appeal has been lodged in bad faith as the appellant opposed the early confirmation of the grant despite proof of medical emergencies and school fees with no cogent reason. The applicant states that the appellant was heard and she filed responses and was given three mention notices to file submissions which she never did. The trial court further indulged her with one more week to file submissions but she failed to do so. Thus due to the actions of the appellant, the children and some of the beneficiaries continue to suffer for non-cooperation as a joint administrator thus necessitating the court to grant the orders sought in order to carry on with the administration of the estate. The Respondent’s Case 6.The respondent states that the appeal is fresh and directions are yet to be taken thus the application is premature and driven by greed and bad faith on the part of the applicant. The respondent further states that the learned magistrate rendered her ruling on 24th September 2025 and found that Plot No. 15/029 Juja East was not part of the estate of the deceased and thus not available for distribution however the applicant went ahead and distributed the said property. Further the applicant made or caused to be made the certificate of confirmation of grant comprising the said property and uttered the same to the learned magistrate for endorsement. The respondent states that the confirmation of grant was in terms of the partial consent of the parties dated 2nd May 2025 which did not include the parcels of land named in the partial settlement agreement. 7.The respondent states that the applicant received Kshs. 21,000/- per term for each of her four children for their upkeep and school fees from an organization called Laptrust where about Kshs. 2,100,000/- is domiciled for their support. Thus the applicant is not in need of finances as they are well taken care of. 8.The respondent argues that she appealed against the decision of the lower court because part of the estate to which the land was not distributed by the court and what was distributed was done in an unfair manner and the applicant is bent on taking most of it if not all. The respondent avers that the applicant is a second wife of the deceased and got married after she as the first wife and the deceased had already acquired most of the properties comprising the estate of the deceased. Further, the applicant admits that she filed the schedule of distribution of the estate which is contrary to the ruling of 24th September 2025 by the magistrate’s court. 9.The respondent further argues that the estate of the deceased should be distributed equally between the two houses and not amongst the children of the deceased which gave the house of the applicant undue advantage. The respondent states that since she filed the appeal, her advocate has tried to get proceedings without success but she has learnt from the Deputy Registrar that there is a High Court in Thika and she is in the process of filing an application to transfer the appeal to the Thika High Court for hearing and disposal. 10.The respondent states that the applicant is not prejudiced at all by the appeal being heard and determined. 11.Parties disposed of the application by way of written submissions. The Applicant’s Submissions 12.The applicant relies on Order 42 Rule 35 of the Civil Procedure Rules and the case of Mutwiwa & Another vs Martin (Civil Appeal E044 of 2022) [2025] KEHC 154 (KLR) and submits that no steps have been taken to prosecute the appeal herein and the respondent has not offered any credible explanation for the same. Further, the appellant’s assertion that delay in obtaining typed proceedings is beyond her control is unsubstantiated as no certificate of delay has been annexed. Additionally, no correspondence with the relevant registry or offices have been shared with the court to demonstrate an effort to have the appeal proceed the entire six months. to support her contentions, the applicant refers to the decision in Salat vs Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR. 13.The applicant relies on the case of Satya Bhama Gandhi vs Director of Public Prosecutions [2018] eKLR and submits that the appellant has previously relied upon the impugned grant to withdraw funds for her personal use. Thus having aprobated the grant, she cannot now be heard to reprobate it. It is trite that a party who uses and benefits from an instrument be allowed to challenge its validity. Further, the applicant argues that Section 40 of the Law of Succession Act provides that the estate of a deceased person who is polygamous shall be divided among the houses according to the number of children in each house, which the trial court did. Thus, the appellant’s reason for appeal is not legally untenable and is demonstrative of a fundamental misapprehension of the law. 14.The applicant submits that the appellant never stayed with the deceased for over 15 years the deceased was together with her and the appellant did not provide any proof of marriage not maintenance save for a chief’s letter. The applicant further submits that in order to avoid conflict, she chose to be accommodative despite having the liberty to refuse to do so. The applicant further adds that she has 4 children who are all of school going age yet the appellant has only one adult child aged over 30 years. The applicant argues that the distribution undertaken by the trial court was equitable and in strict conformity with the law. The appellant’s insistence on equal distribution between the houses regardless of the fact that there are four young children and medical needs involved, is therefore malicious and wastage of the courts time. 15.The applicant submits that the alleged forgeries are mere typographical errors apparent on the face of the record and indeed the trial court expressly found that the ‘Igegania’ property did not form part of the deceased’s estate and wish to state that the discrepancy was attributable to a typographical error. Further Rule 63 of the Probate and Administration rules provides a clear mechanism for addressing such error through review. The applicant further submits that she demonstrated in the trial court the need for medical funds and needs for the children which the court was satisfied and agreed. The Respondent’s Submissions 16.The respondent submits that there was no inordinate delay in filing the appeal and further urges the court to extend time to ensure that justice is not defeated by the mere procedural requirements outside the control of a party. The respondent refers to Section 1A & 1B of the Civil Procedure Act and the case of Mutwiwa & Another vs Martin (Civil Appeal E044 of 2022) (2025) KEHC 154 KLR and submits that the court ought to be guided by Section 3A of the Civil Procedure Act to meets the ends of justice. 17.The respondent submits that she has been following up the matter at the Kiambu High Court without the help from the registry staff and it is the Deputy Registrar who informed her of the matter being transferred to the instant court as no communication was made to her. The respondent further submits that the appeal raises serious issues for determination as the confirmed grant is partial and therefore it is not clear how the estate that was left out ought to be distributed. She further submits that the estate ought to be distributed equally between the two houses before it is distributed to the children of the deceased. To support her contentions, the respondent relies on the case of In Re Estate of Kibet arap Ngeny (Deceased) (Succession Cause No. E013 of 2022) (2024) KEHC 16354 (KLR). The LawSUBDIVISION - Whether the applicant is entitled to an order setting aside dismissal of the appeal for want of prosecution 18.Section 47 of the Law of Succession Act gives the court jurisdiction to entertain any application such as the present one which seeks to preserve the status quo pending the appeal. The law concerning dismissal of an appeal for want of prosecution is contained in Order 42 Rules 35(1) & (2) of the Civil Procedure Rules which provides as follows:-Unless within three months after the giving of directions under Rule 13 the appeal shall be set down for hearing, the respondent shall be at liberty to either set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution.If within one year after service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal. 19.In Njai Stephen vs Christine Khatilala Andik Civil Appeal No. 248 of 2017 the court summarized the law on appeals under Order 42 Rule 35 of the Civil Procedure Rules as follows:-Order 42 Rule 35 of the Civil Procedure Rules, 2010 envisages two scenarios for the dismissal of an appeal for want of prosecution. The first scenario is when an appellant fails to cause the matter to be listed for directions under Section 79B of the Civil Procedure Act as is envisaged in Order 42 Rule 11 of the Civil Procedure Rules. The second scenario is that if after service of memorandum of appeal the appeal would not have been set down for hearing, the registrar shall on notice to the parties list the appeal before the judge for dismissal. 20.In the instant case, the memorandum of appeal was filed on 13th October 2025 in the High Court Kiambu vide Succession Appeal No. E028 of 2025. The High Court Kiambu on 9th February 2026 transferred the appeal to the this court based on the territorial and administrative jurisdiction. I have considered the explanation by the appellant that she is experiencing difficulty in getting the proceedings from the lower court. I have perused the record and noted that the appellant has not annexed any letters requesting for the typed proceedings from the lower court. It is evident that the appellant has not been vigilant to seek the typed proceedings as she has not demonstrated her efforts in doing so. 21.However the law under Order 42 Rule 35(1) of the Civil Procedure Rules is clear that directions have to be issued before a respondent can take either of the two options given under that provision; either to set the appeal down for hearing or apply for it to be dismissed for want of prosecution. This position was well articulated by the court in Pinpoint Solutions Limited & Another vs Lucy Waithegeni Wanderi (as the legal administrator of the Estate of James Nyanga Muchangi) [202]0] eKLR that:-The provisions of the law relating to dismissal cannot be read in isolation. The bottom line is that directions must have been given before an appeal can be dismissed for want of prosecution. Indeed, there does not appear to be any penalty where an appellant fails to proceed as per Order 42 Rule 11 and order 42 Rule 13 of the Civil Procedure Rules, 2010.This court took the view that an appeal cannot be dismissed before directions had been given. As there was no indication that directions had been given herein, the appeal herein could not be dismissed under Order 42 Rule 35(1) of the Civil Procedure Rules. In any event, there was also no evidence that the Registrar had issued a notice under Order 42 Rule 12 of the Civil Procedure Rules. There was also no indication that the lower court file and proceedings had been forwarded to the High Court for the Registrar to proceed as aforesaid… 22.The record is clear that no directions have been given in this matter. The instant application is therefore premature. However, the appellant should not take advantage of the situation to delay the appeal unnecessarily. Any delay inconveniences the opposite party and should not be encouraged 23.The appellant is hereby directed to file the record of appeal within thirty (30) days failure to which this appeal will fall due for dismissal for want of prosecution. 24.Accordingly the application dated 6th March 2026 lacks merit and is hereby dismissed. 25.Due to the nature of this application, it is hereby ordered that each party meets their own costs. 26.It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 21ST DAY OF MAY 2026.F. MUCHEMIJUDGE