https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1062

Muriuki & another v Makara & another (Civil Application E005 of 2026) [2026] KECA 1062 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1062 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Application E005 of 2026 M Ngugi, JA May 29, 2026 Between Jane Wambui Muriuki 1st Applicant Samuel Maina Muriuki 2nd Applicant and Rosemary Wambui Makara 1st Respondent Ann Muthoni Ndungu 2nd Respondent (Being an application for extension of time to file and serve a Notice of Appeal out of time and stay of execution of the ruling and order of the High Court of Kenya at Nyeri (Kizito, J.) delivered on 28th July, 2025 and stay further proceedings in Nyeri H.C. Succession Cause No. 328 of 1996 pending hearing of the application and the intended appeal) Ruling 1.In the application dated 27th January, 2026, the applicants, Jane Wambui Muriuki and Samuel Maina Muriuki seek leave to file a notice of appeal out of time against the ruling of the High Court at Nyeri (Kizito, J.) dated 28th July 2025 in Nyeri High Court Succession Cause No. 328 of 1996; an order of stay of execution of the said ruling and order; and stay of further proceedings in the succession cause pending hearing and determination of their intended appeal. They further seek prohibitory orders to inhibit transactions over land parcel numbers Tetu/Unjiru/781, 782, 784 and 785 pending the hearing and determination of the intended appeal. 2.The application is brought under sections 3A and 3B of the Appellate Jurisdiction Act, Article 164(3) of the Constitution and rule 4 of the Court of Appeal Rules. 3.The application is based on the grounds on its face and is supported by the affidavit sworn jointly by the applicants on 27th January, 2026. The applicants aver that they were dissatisfied with the impugned ruling in which the court dismissed their summons for revocation of grant dated 3rd December, 2024. They assert that they did not file a notice of appeal within time because they had been advised that leave to appeal in succession matters from the High Court to this Court was mandatory; and that upon dismissal of their application for leave by the High Court on 20th January, 2026, they promptly moved this Court seeking extension of time. 4.They further state that the impugned ruling rectified the certificate of confirmation of grant by removing the name of Moses Maina Makara as trustee for the third house and distributing the subject properties amongst several beneficiaries. They assert that unless the orders sought are granted, the respondents will proceed with transmission of the estate properties, to the prejudice of the applicants. 5.The application is opposed by an affidavit sworn by the 1st respondent, Rosemary Wambui Makara, on 12th February, 2026.The respondents aver that the prayers for stay have been overtaken by events as transmission of the estate has already been effected pursuant to the judgment of the High Court delivered on 30th January, 2017 and the judgment of this Court in Nyeri Civil Appeal No. 114 of 2017. It is averred that the applicants’ share falls within the third house which was already considered by both the High Court and this Court, and that the present application merely seeks to prolong litigation in a matter that has been in court for over twenty-nine years. 6.I have considered the application and the averments in support and opposition thereto. The applicants seek a multiplicity of orders in their application. Only one, for extension of time under rule 4, falls within my jurisdiction as a single judge. 7.The ruling that they seek to appeal from was delivered on 28th July, 2025. The applicants aver that after its delivery, they first moved the High Court through an application dated 7th August, 2025 seeking leave to appeal, believing that such leave was mandatory in succession matters. That application was dismissed on 20th January, 2026, whereupon the applicants filed the present application on 27th January, 2026. It is thus apparent, from the material placed before me, that the applicants were not indolent after delivery of the impugned ruling, and there has been no inordinate delay in filing the application. In the circumstances, I am satisfied that their application for extension of time to file an appeal to this Court is merited. 8.I say this bearing in mind the recent decision of the Supreme Court in Eliud Mwendia Wandi v Kevin Wanjohi Muchira SC Petition No. E029 of 2024 in which the apex Court held that leave to appeal to this Court from a decision of the High Court in succession matters is not required. 9.The applicants further seek orders of stay of execution and stay of proceedings pending the intended appeal. I have noted the averments of the respondents with respect to these prayers. Whatever the merits of this limb of the application, it is outside the remit of a single judge. Further, in light of the provisions of rule 5(2)(b) where a notice of appeal is a condition precedent to an application for stay of execution and proceedings, it is doubtful that the said prayers can be entertained in the current application. 10.In the result, I allow the applicants’ prayer for extension of time and hereby extend time for the applicants to file their notice of appeal from the ruling of Magare J. dated 28th July 2025, such notice to be filed within seven (7) days from the date hereof. 11.I make no orders with respect to the prayers for stay of execution, stay of proceedings and prohibitory orders. There shall be no orders as to costs. DATED AND DELIVERED AT NYERI THIS 29TH DAY OF MAY, 2026.MUMBI NGUGI……………………………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR