https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1271

Mary Kiarie v Kiarie (Civil Appeal (Application) E713 of 2025) [2026] KECA 1271 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1271 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E713 of 2025 AO Muchelule, JA July 3, 2026 Between Mary Kiarie Applicant and Kenneth Mwangi Kiarie Respondent (Being an application for extension of time to file and serve the notice of appeal out of time from the ruling of the High Court of Kenya at Nairobi (Riechi, J.) dated 29th August 2024 in Succession Cause No. 596 of 1989) Ruling 1.Vide motion dated 25th September 2025, the applicant, Mary Kiarie, seeks enlargement of time to file and serve a Notice of Appeal. Secondly, that the Notice of Appeal dated 1st August 2025, filed on 25th September 2025 and served upon the respondents on 29th September 2025, be deemed as duly filed and properly served. The application arises from a ruling delivered on 29th August 2024 dismissing the applicant’s application for review of the superior court’s earlier orders in the succession cause. 2.The applicant attributes the delay in lodging the intended appeal to the fact that the advocate handling the matter proceeded on maternity leave before informing her of the outcome of the review application. She further contends that upon subsequently becoming aware of the adverse ruling, she was unable to immediately instruct counsel to file an appeal due to financial constraints in meeting the requisite legal fees. The applicant termed the delay as neither deliberate nor contumelious and is excusable in the circumstances. 3.The respondent opposes the application on the basis that it is grossly out of time, having been filed approximately fifteen months after delivery of the impugned ruling, and that the delay is inordinate, unexplained, and inexcusable. It is contended that the reasons advanced for the delay, including alleged counsel’s maternity leave and inability to raise legal fees, are vague, unsupported, and unsubstantiated, with no evidence of when the applicant became aware of the ruling or what steps were taken during the period of delay. The Respondent further points to additional unexplained delay in the filing and service of the motion, which they argue reflects indolence and an attempt to ambush them. It is also argued that the application is part of a pattern of serial and belated litigation aimed at reopening matters long concluded in previous proceedings concerning the estate, thereby offending the principle of finality in litigation. The Respondent further contends that the intended appeal is not arguable, as the draft memorandum raises no triable issues and is frivolous, and that the applicant has not approached the Court with clean hands. Accordingly, it is urged that the application is devoid of merit and ought to be dismissed with costs. 4.Before the superior court, the applicant sought to review the judgment delivered on 15th November 2006 that found that the dependants were only taken in by the deceased due to a cordial relationship between the deceased and their mother Peninah and not as the deceased’s children and/or dependants. In the impugned ruling, the review motion was dismissed for failure to establish the threshold for review, specifically, the discovery of a new and important matter or evidence. 5.On the merits of the application, the applicant contends that the failure to lodge the appeal within time was neither deliberate nor contumelious, but resulted from lack of timely notice of the delivery of the ruling by her former advocate, who allegedly failed to inform her and subsequently proceeded on leave. She states that she and her family only became aware of the adverse ruling in mid-2025, upon consulting a different advocate, by which time the statutory period for appeal had already lapsed. She further explains that they thereafter took steps to secure representation and raise funds, which contributed to the delay. The applicant maintains that the intended appeal is arguable as it raises substantive issues relating to inheritance rights and the validity of competing claims to the estate. She further submits that no prejudice will be suffered by the respondents as the status quo in the estate has been preserved over time, and accordingly urges the Court to exercise its discretion in favour of granting the application. 6.No submissions have been filed by the respondent. 7.Under Rule 4 of the Court of Appeal Rules, the Court’s discretion is wide but must be exercised judicially, guided by the length of delay, the reason for the delay, the arguability of the intended appeal, and prejudice to the respondent, all balanced against the need for finality in litigation. In this case, the delay of approximately thirteen to fifteen months is inordinate and requires a plausible and well-supported explanation. The applicant attributes the delay to lack of communication from counsel due to maternity leave and later financial constraints. However, litigation belongs to the parties, and a litigant is under a duty of vigilance to follow up on the progress of their case. In the absence of evidence showing when the applicant became aware of the ruling and what steps were taken thereafter, the explanation remains general and insufficient to account for the entire period of delay. 8.On arguability, the draft memorandum of appeal raises two main grounds: first, that the learned Judge failed to properly consider the threshold for review, including whether sufficient cause was established; and secondly, that the court failed to consider the period the applicants had lived with the deceased in assessing dependency. While these issues are not frivolous and may warrant consideration on appeal, bearing in mind that the record was not attached herein, from the copy of the ruling, the prolonged and unexplained delay overrides the arguability aspect. 9.Balancing all the factors, I find that the delay is inordinate and not satisfactorily explained, and that arguability alone cannot cure such delay. I further find that the duty of vigilance on the part of litigants was not sufficiently discharged. In the circumstances, the interests of finality in litigation outweigh the reasons advanced for the delay, and I am not persuaded to exercise discretion in favour of the applicant. The motion is therefore dismissed with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY 2026.A.O. MUCHELULE....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar.