https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11196

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **FAMILY MISC. APP. NO E036 OF 2025** **KANANU PURITY MUTHEE---------------INTENDED APPELLANT/APPLICANT** **VERSUS** **GRACE KANANU M’MWIRABUA-----------------------------RESPONDENT** **RULING** 1. The Intended Appellant/Applicant moved this court by way of a Notice of Motion Application dated 5th December 2025 seeking the following orders against the Respondent; 2. Spent 3. That the Intended Appellant/Applicant be granted leave to appeal out of time against the whole ruling of the Chief Magistrate’s court at Maua in Succession Cause No. E061 of 2022, delivered on 15th July 2025. 4. That this Honorable Court be pleased to issue and order of injunction restraining the respondent from alienating, transferring, selling and disposing Land Parcel Nos. Kiegoi/Kinyanka/1165 and Land Parcel No. Kiegoi/Kinyanka/470 (the suit properties), or evicting or in any other way interfering with the appellant’s peaceful user and occupation of the suit properties in any manner whatsoever pending the hearing and determination of this application. 5. That this Honorable Court be pleased to issue and order of injunction restraining the respondent from alienating, transferring, selling and disposing the suit properties or evicting or in any other way interfering with the appellant’s peaceful user and occupation of the suit properties in any manner whatsoever pending the hearing and determination of the intended appeal. 6. That pending the hearing and determination of this application, this Honorable Court be pleased to issue an order of inhibition prohibiting the dealings involving Land Parcel Nos. Kiegoi/Kinyanka/1165 and Land Parcel No. Kiegoi/Kinyanka/470 (the suit properties). 7. That pending the hearing and determination of the intended appeal, this Honorable Court be pleased to issue an order of inhibition prohibiting the dealings involving Land Parcel Nos. Kiegoi/Kinyanka/1165 and Land Parcel No. Kiegoi/Kinyanka/470 (the suit properties). 8. The instant application is anchored by the supporting affidavit sworn by the applicant on the 5th December 2025, on the grounds deponed therein, inter alia; 9. That the applicant filed Maua Succession Cause No. E061 of 2022 seeking to distribute the estate of her deceased grandfather, which estate had been left in the occupation of her deceased father. 10. That following the death of the applicant’s father, the applicant and her siblings continued to occupy the estate (the suit properties) 11. That the succession court at Maua distributed the suit properties and a certificate of confirmation of grant dated 13.04.2023 was issued to that effect. 12. The respondent filed summons for revocation of grant dated 13.07.2023 and opposed the adopted applicant’s mode of distribution as per the confirmed grant. 13. That consequently, the succession court at Maua vide the ruling dated 15.07.2025 revoked the grant and issued another grant dated 15.07.2025. 14. That from the delivery of the ruling that revoked the grant, the new grant was never uploaded in the Judiciary CTS until the 15.07.2025. 15. That the applicant fell ill from the 15.07.2025 and was not in a position to appeal the ruling of the trial court, 16. Consequently, the intended appellant/applicant has now recovered and has brought the instant application. 1. Further, the applicant contends that the respondent has been threatening to evict her form the suit properties and that has necessitated her to seek for an injunction and orders of inhibition pending the hearing and determination of the instant application and the intended appeal. 2. She contends that even if leave to appeal out of time was granted in exclusion of the injunctive orders, the respondent will alienate the suit properties and the same will render the intended appeal nugatory. 3. The application is opposed by the respondent through a replying affidavit sworn on the 18th December 2025. It is her contention that the applicant has not specified the nature of the injunctive orders sought and such omission leaves this court in a limbo given that injunctive orders which are permanent in nature cannot issue at an interlocutory stage. 4. She further contends that the grant that was issued to the applicant was lawfully and properly revoked on grounds of fraud and non-disclosure of material facts. 5. The respondent also disputed the applicant’s contention that the trial court’s ruling was uploaded late and further disputed that the applicant was unwell and could not file the intended appeal on time. 6. Both parties filed their written submissions and this court has had the advantage of perusing them. 7. Given the nature of the orders sought and without delving much into the merits and demerits of the substantive issues raised, this court finds that it is only tasked with the obligation of determining the following issues; 8. Whether an order of extension of time to appeal should issue; 9. Whether the applicant has proved grounds for issue of injunctive orders 10. Section 79G of the Civil Procedure Act 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. From the proceedings in the trial court, the ruling Maua in Succession Cause No. E061 of 2022 was initially scheduled for 20/06/2024 but the court deferred the same to 11/07/2024, then to 16/07/2024 and then to 18/07/2024. Eventually, it was delivered on 31/07/2024 in the absence of the parties. The record shows that subsequently the parties did appear before the court and it gave a date for what it termed as “to restate the ruling”. The mentions continued and the ruling was re-delivered on 15/07/2025. The advocate for the applicant was not present. 2. This application was brought on the 05/12/ 2025 which is roughly 5 months subsequent to the re- delivery of the trial court’s ruling. 3. This court is therefore invited to determine whether the 5 months that have lapsed amount to inordinate delay and whether this court should exercise its discretion to grant the orders sought. 4. The applicant has contended that the main reason for filing the appeal late in the day is because the trial court’s ruling was uploaded late in the judiciary CTS and that she fell sick and thus was unable to prosecute the intended appeal. 5. The history that I have set out clearly shows that the applicant was not present when the ruling was delivered and re-delivered. No notice was given to her of the date for re-delivery of the ruling. For that reason, this court is reluctant to fault the intended appellant/applicant for the delay in bringing this application. 6. The delay, in my view is sufficiently explained by the applicant and the court record itself. 7. Consequently, this court is persuaded to grant the applicant the leave she has sought to file her appeal out of time. 8. Has the applicant provided grounds for issue of injunctive orders? 9. For a court to grant an order injunction, three conditions must be met, as was held in the landmark case of **Giella V Cassman Brown & Co. Ltd EA 358 [1958].** The three conditions are as follows; 10. **Prima Facie Case:** The applicant must demonstrate that they have a legitimate claim with a probability of success, raising serious questions to be tried. 11. **Irreparable Injury:** The applicant must prove that they will suffer harm or damage that cannot be adequately compensated by an award of financial damages. 12. **Balance of Convenience:** If the court is in doubt about the first two conditions, it will weigh the potential inconvenience and harm that each party would suffer if the injunction is granted versus if it is denied. 13. The court of appeal in the case of **Nguruman Ltd v Nielsen & 2 Others [2014] KECA 606 (KLR)** upheld this position. 14. From the application filed and the responses by the parties, its is clear that the applicant and the respondent are siblings and that there is a bone of contention in regards to the distribution of their grandfather’s estate. 15. The court of appeal in the case of **Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR)** defined what would amount to a prima facie case. The court held as follows; **“A prima facie case in a civil application included but was not confined to a genuine and arguable case. It was a case which, on the material presented to the court, a tribunal properly directing itself would conclude that there existed a right which had apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”** 1. Having looked at the draft memorandum of appeal annexed to the instant application, this court is persuaded that there exists triable issues which need to be canvassed in the intended appeal. From the foregoing, this court finds that the intended appellant/applicant has proved the existence of a prima facie case. 2. Having looked at the instant Notice of Motion application and the rebuttals by the respondent, this court is also of the view that justice will be deemed to have been done if parties are given an opportunity to present their arguments in the intended appeal. 3. In **Nguruman Ltd v Nielsen & 2 others (supra)** the courtdefined irreparable injury as follows; **“On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.”** 1. This court appreciates that the confirmed grant distributed the deceased’s estate to the applicant and the respondent together with their siblings. Further, the impugned ruling also proposed a mode of distribution of the suit properties to the parties herein and their siblings. This suffices to say that there are other parties interested in the suit properties apart from the applicant and the appellant. I am persuaded that if an order to preserve the suit properties is denied, the intended appeal will be rendered a mere academic exercise. 2. For this reason, this court finds that irreparable injury is likely to be occasioned to the applicant if the order of temporary injunction is denied in the interim. 3. Therefore, this court finds that it is only fair and in the interest of justice that the Respondent or any other person acting under her instructions be barred from alienating, transferring, selling and/or disposing the suit properties. 4. Having addressed the first two conditions for grant of an injunction, this court finds that potential inconvenience and harm is likely to be occasioned to either party and or their siblings if they are denied an opportunity to be heard. This court also finds that declining to stop the looming alienation of the suit properties in the interim will render the intended appeal a nugatory. If the appeal succeeds and the parties will have alienated the land, then they will have to re-align their occupation again. **Disposition** 1. I hereby find that the application dated 5th December 2025 is merited and orders do issue on the following terms; 2. **That leave is hereby granted to the intended appellant/applicant to file the appeal out of time against the ruling in Maua Succession Cause No. E061 of 2022.** 3. **That the applicant is directed to file and serve the memorandum of appeal within the next 7 days.** 4. **That failure to comply with the order in (b) above, all other orders so given herein shall automatically lapse.** 5. **That an order of injunction is hereby issued restraining both the applicant and the respondent from alienating, transferring, selling and disposing the suit properties or evicting or in any other way interfering with the suit properties in any manner whatsoever pending the hearing and determination of the intended appeal.** 6. **The costs shall abide by the outcome of the intended appeal and if none is filed then they shall be borne by the applicant.** **Dated, signed and delivered at Meru this 16th day of July 2026** **H. M. NYAGA** **JUDGE**