https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6838

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MARSABIT** **APPELLATE DIVISION** **CIVIL APPEAL NO E012 OF 2025** **MANSUR SHEIKH……..……..………………..…………..….... APPLICANT** **VERSUS** **HALIMA SHEIKH OMAR……………………………………RESPONDENT** **RULING** 1. **INTRODUCTION** 2. The application before the court for determination is the Notice of Motion application dated 18th November 2025 brought pursuant to provisions of ***Section 1, 1A, 3, 3A & 79G of the Civil Procedure Act, Order 51rule 6 of the Civil Procedure Rules, Articles 48 and 159 of the constitution of kenya*** and all other enabling provision of law. The Applicant seeks orders that; 3. ***Spent*** 4. ***That this Honourable court be pleased to grant leave to file the appeal as well as the application to stay execution of the judgment and decree out of time against Kadhi case Number E003 of 2025 dated 26th August 2025.*** 5. ***THAT this Honourable court be pleased to extend time for filing Appeal against Kadhi’s succession cause No E003 of 2025 at Marsabit.*** 6. ***THAT upon granting prayers (b) and (c) above, provide timelines for filing the Application and Appeal.*** 7. ***THAT costs of and incidental to this application be borne by the respondent.*** 8. The said application is supported by the ground stated on the face of the said application and the attached supporting affidavit dated 18th November 2025, sworn by the applicant who deponed that the learned Kadhi had delivered a judgment dated 26th August 2025 purporting that land parcel Number 324, Marsabit town belonged to part of the estate of the late ***SHEIKH OMAR ALI ( DECEASED),*** when that was not the factual position as the said property had been gifted inter vivo’s as contemplated under the law of succession Act during the lifetime of the deceased. 9. Being aggrieved by the said decision, he had been advised to file an appeal and had had to seek leave of the court to do so, since he had not filed the said appeal on time. The delay was unforeseeable and due to circumstances beyond his control and thus urged the court to grant the orders sought. 10. The respondent would not suffer any prejudice if the orders sought were granted and he thus urged this court to grant the orders sought in the interest of justice. 11. The Respondent, despite being given ample opportunity, did not file any response. 12. **ANALYSIS & DETERMINATION** 13. **Order 50 rule 6 of the Civil procedure Rules** further provides that; ***“ where a limited time has been fixed for doing any act or taking any proceedings under these rules or by summary notice or by order of the court, the court shall have powers to enlarge time upon such terms(if any) as the justice of the case may require, and such enlargement maybe ordered although the application for the same is not made until after the expiration of the time appointed or allowed.”*** 1. There is no doubt that the discretion to extend time is not a right of the party but is an equitable remedy that is only available to a deserving party after laying a basis to courts satisfaction that there exists reasonable explanation as to why there has been a delay. The court will also consider if any prejudice will be suffered by the respondent and if the application has been brought without unreasonable delay**. See *Supreme court citation of Nicholas Kiptoo arap Korir Salat Vs IEBC& 7 Others (2014) eklr.*** 2. The applicant has not offered any explanation as to why he delayed filing his proposed appeal, but be that as it may, the said application is filed about 2 months after the impugned judgment and more importantly, it is noted that the respondent has not opposed the same application. The same is therefore allowed but his prayer for stay of execution cannot be granted in a vacuum before the said appeal is filed. 3. **DISPOSITION** 4. The Application dated 18th November 2025 is allowed in terms of prayer (c) and the applicant is granted 14 days from the date of this ruling to file and serve his notice of Appeal. 5. Each party will bear their own costs of this Appeal. 6. It is so Ordered. **READ, SIGNED,** and **DELIVERED** virtually at **Marsabit** on this **21st** day of **MAY 2026.** **FRANCIS RAYOLA OLEL** **JUDGE** Delivered on the virtual platform, Team this **21st** day of **MAY 2026.** **In the presence of**: - N/A…………………………………..Applicant N/A………………………………. Respondent JARSO………………………….Court Assistant