Marigi alias Selina M Barnabas Mkangura Marigi v Kamidi (Miscellaneous Civil Application E003 of 2026) [2026] KEHC 11719 (KLR) (27 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **MISC. CIVIL APPLICATION NO. E003 OF 2026** **IN THE MATTER OF THE ESTATE OF SERINA MARIGI ALIAS SELINA M** **BARNABAS MKANGURA MARIGI .............................................. APPLICANT** **VERSUS** **NATHAN KAMIDI ................................................................. RESPONDENT** *(Being an Appeal from the Ruling and decision of Honourable N. Moseti Principal Magistrate Court at Hamisi dated the 19th day of December, 2024 in Hamisi Principal Magistrate's Court Succession Cause No. 57 of 2017)* **Coram: Justice R. Nyakundi** **RULING** 1. Before Court is a notice of motion dated 5th day of March 2026 brought under Sections 79G and 95 of the Civil Procedure Act and Order XLIX Rule 5 of the Civil Procedure Rules where the Applicant is seeking the following orders: 2. *THAT the Applicant Appellant be granted leave to appeal out of time against the whole Ruling of the Hamisi Principal Magistrate's Court Succession Cause No. 57 of 2017 delivered on 19th December, 2024 at Hamisi.* 3. *THAT the costs of this application be provided for.* 4. The application is premised upon the following grounds cited here below: 5. *That the ruling herein was delivered on 19th December, 2024 and no right of appeal was granted.* 6. *That following the judgement, the applicant being an old man and the remaining elder in the family, had to take care of his ailing elder brother one Jackton Onacha who later on passed on.* 7. *The delay in lodging an appeal was thus occasioned by the circumstances beyond the applicant's control.* 8. *That the beneficiaries to the estate of the deceased stand to lose as they have been left out of the distribution of the estate of the deceased.* 9. *The delay occasioned herein is not so inordinate or so great as to be inexcusable.* 10. The application is supported by an affidavit sworn by the Applicant who depones as follows: 11. *THAT I am the Applicant herein and conversant with facts of this case hence competent to depose to facts of this affidavit.* 12. *THAT the ruling herein was delivered on 19th December, 2024 and no right of appeal was granted.* 13. *THAT I am an old man and the remaining elder in the family, I had to take care of his ailing elder brother one JACKTON ONACHA who later on passed on, thus this coupled with other responsibilities and financial constraints, I did not take necessary steps to challenge the ruling.* 14. *THAT the delay in lodging an appeal was thus occasioned by the circumstances beyond my control.* 15. *THAT the other beneficiaries who are to benefit from the estate of the deceased but got nothing, stand to lose as they have been left out of the distribution of the estate of the deceased.* 16. *THAT I failed to file the appeal within the reasonable period of time because of the circumstances beyond my control with my then advocates.* 17. *THAT the delay occasioned herein is not so inordinate or so great as to be inexcusable.* 18. *THAT I am aggrieved and dissatisfied with the said judgement.* 19. *THAT my appeal has high chances of success.* 20. *THAT this Court has the power to enlarge such time.* 21. *THAT I swear this Affidavit in support of the Application.* 22. In addition to the affidavit, the Applicant shared with the Court his memorandum of appeal filed in Court on 15th May 2026 which expressly provides the following grounds to the appeal: 23. *The Learned Magistrate erred in law and fact by ignoring the Objector's the Appellant herein evidence together with his witnesses.* 24. *The Learned Magistrate erred in law and fact when he brought in extraneous issues which were not part of the evidence adduced.* 25. *The Learned Magistrate erred in fact and law when he distributed the estate of the deceased amongst out two beneficiaries who were children to the son to the deceased out of distribution of the deceased estate against the weight of evidence.* 26. *The Learned Magistrate erred in law and fact when he failed to appreciate the fact that the deceased interest in the land comprised of a half share thereby arriving at a long conclusion.* 27. *The Learned Magistrate erred in fact and law when he distributed the estate of the deceased against the weight of evidence.* 28. *The Learned trial magistrate erred in law and fact in when he failed to acknowledge the fact that the four daughter of the deceased had no authority to sell the deceased land and therefor the sale was invalid.* 29. *The learned magistrate erred in law when he presumed that a similar application for revocation had been heard and determined whereas the application was dismissed on technicalities and not on the weight of evidence.* 30. *The Learned Magistrate erred in law and in fact when he failed to correctly analyse the evidence on record thereby arriving at a wrong* decision. 31. It is from this basis the Applicant seeks extension of time to file an appeal from the High Court. 32. The Civil Procedure Act under Section 79G provides as follows: *Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: 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.* 1. The court do not condone delay in filing an appeal as a matter of right. The law provides a window for filing belated appeals which requires a formal application detailing sufficient cause for the delay. The court looks at the reasonableness of the cause rather than the length of the delay. 2. The key decided cases and principles on the approach of filing on an appeal out of time as herein under demonstrates the liberal justice oriented approach in exercising discretion to grant leave for an applicant to file his/her appeal out of time. Thus: * ***Length of the Delay:*** *While no maximum time is set, the delay must be explained from the date of judgment to the date of filing the application.* * ***Reason for the Delay:*** *A "plausible and satisfactory" explanation is required, such as failure to receive timely legal aid, lack of conviction records, or illness.* * ***Prospects of Success:*** *The intended appeal should not be frivolous and must have arguable grounds.* * ***Prejudice:*** *Whether the respondent (usually the Republic) will suffer prejudice.* * ***Interests of Justice:*** *The Court of Appeal emphasized that in criminal cases, a right of appeal should not be easily denied due to technicalities if a substantial injustice has occurred.* 1. This is in so far as the ambit of the jurisprudential dicta in the realm of civil law is concerned but why do I refer to the metaphor of Siamese twins in both criminal and civil procedural law in so far as the factors of significance to persuade the court to extend time? Let us have a look at the guiding principles in the landmark decisions notoriously referred to in every litigation landscape on enlargement of time. This is to draw the differentia minimum and maximum as to the interlocking principles in the two branches of law. In the case of **Nicholas Salat Vs IEBC & 7 Others** the Supreme court made the following observations on the principles to be considered in determining an application on extension of time as follows: 2. *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;* 3. *A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;* 4. *Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;* 5. *Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;* 6. *Whether there will be any prejudice suffered by the respondents if the extension is granted;* 7. *Whether the application has been brought without undue delay; and* 8. *Whether in certain cases, like election petitions, public interest should be a consideration for extending time.*” 9. From the comparative jurisdiction in the case of **LONG-JOHN & ORS V.BLAKK & ORS (1998) SC** the apex Court held that; *"There can be no doubt that for an application for an extension of time within which an appellant may file his brief of argument out of time or, indeed, for an extension of the time prescribed by the rules of Court for taking certain procedural steps, to succeed, the Applicant must establish good, substantial or exceptional reasons or circumstances to explain satisfactorily the delay in filing his brief or taking the steps in issue and thus justify the grant of the extension of time applied for, whatever decision a Court arrives at in such applications must entirely depend on the exercise of its discretionary jurisdiction, having regard to the general principles of law governing the exercise of discretionary powers by the Courts and guided by the consideration of doing justice to all the parties to the dispute". See also the case of Chief T.O.S. Benson V. Nigeria Agip Oil Co. Ltd. (1982) 5 SC 1.* 10. In determining this application under Section 79G of the CPA, the court may restore the proceedings only if a good reason is given from failing to file an appeal within time of 30 days that the applicant has unrealistic prospect of success in the indeed appeal that the other parties to the proceedings would not be more prejudiced by granting the application than by the applicant refusing it. 11. In the comparative case of *Costellow v Somerset* the Court in its illuminating passage herein held as follows: That time problems in litigation arise at the intersection of two principles, both salutary neither absolute: *'...The first principle is that the rules of court and the associated rules of practice, devised in the public interest to promote the expeditious dispatch of litigation, must be observed. The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met...'* *The second principle is that:* *'... a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate...'* *(3) The approach indicated by these two principles is modified according to the stage which the relevant proceedings have reached. If, for example, the procedural default is in relation to an interlocutory step in proceedings, such as a failure to serve a pleading or give discovery within the prescribed time limits, the court will, in the ordinary way and in the absence of special circumstances, grant an extension of time. Unless the delay has caused irreparable prejudice to the other party, justice will usually favour the action proceeding to a full trial on the merits. The approach is different, however, if the procedural default as to time relates to an appeal against a decision on the merits by the court or tribunal of first instance. The party aggrieved by that decision has had a trial to hear and determine his case. If he is dissatisfied with the result he should act promptly. The grounds for extending his time are not as strong as where he has not yet had a trial. The interests of the parties and the public in certainty and finality of legal proceedings make the court more strict about time limits on appeals. An extension may be refused, even though the default in observing the time limit has not caused prejudice to the party successful in the original proceedings.* *29... (3) If an explanation for the delay is offered, other factors may come into play in the exercise of the discretion. It is, of course, impossible to make an exhaustive list of factors. The Appeal Tribunal will be astute to detect any evidence of procedural abuse, questionable tactics or intentional default. The Tribunal will look at the length of the delay which has occurred, though it may refuse to grant an extension even where the delay is very short. Extensions have been refused, even where the notice of appeal was served only one day out of time... The merits of the appeal may be relevant, but are usually of little weight. It is not appropriate on an application for leave to extend time for the Tribunal to be asked to investigate in detail the strength of the appeal. Otherwise there is a danger that an application for leave will be turned into a mini-hearing of the substantive appeal. Lack of prejudice or of injustice to the successful party in the original proceedings is also a factor of little or no significance. If there is irreparable concrete prejudice, that will strengthen the opposition to the application for extension; but even if there is no prejudice, the application may still be refused."* 1. It has been emphasized that where leave to appeal against a decision is required and the time to seek leave to appeal and file notice of appeal has expired, it is imperative that a tripod application be filed that is a prayer for; (a) extension for time to seek leave to appeal, (b) leave to appeal and (c) extension of time to appeal. For there to be a valid appeal the three leafs must be extended. An important ingredient of exercise of appellate jurisdiction is that there is no feature in the case which prevents the Court from exercising its jurisdiction. In the case before me the Applicant has made his application within the prescribed rules and given reasons why he was not able to appeal within the stipulated 30 days on the issues which he was aggrieved in the impugned decision of the trial Court. 2. The fair trial rights under Article 50 of the Constitution and lack of legal representation emphasize that unrepresented persons have to be informed promptly about the right to choose and be represented by an Advocate and if they elect to conduct the trial by themselves, provisions on the right of appeal at the delivery of the judgment must be strictly explained and what impact the default might have in vindicating one’s rights on the constitutional right of appeal. 3. In my considered view, the likelihood of substantial injustice which may arise in the event the Applicant is barred from proceeding with the appeal process and the aspect of the prospect of the appeal proceeding persuades me to grant enlargement of time for filing of the intended appeal within thirty (30) days from today’s date. It is therefore necessary to direct the Deputy Registrar of the High Court to see to it that the typed record of appeal shall be made ready within the same timeline for purposes of fast tracking the appeal. In the interim period the Deputy Registrar shall monitor compliance within the scheduled period of thirty (30) days being on 27th day of August 2026. This file shall simultaneously be marked as closed pending the opening of an appeal’s file in view of the order on enlargement of time. It is so ordered. **DATED, SIGNED AND DELIVERED THIS 27TH DAY OF JULY 2026** **…………………………………….** **R. NYAKUNDI** **JUDGE**