[2025] KECA 1236 (KLR)
The court found that the applicant had provided a reasonable explanation for the delay in seeking substitution, namely the period of mourning and the time required to obtain letters of administration ad litem. The court noted that the matters pending in court survive the deceased and that substitution is necessary...
Source-derived case information.
- Citation
- [2025] KECA 1236 (KLR)
- Parties
- Applicant: Francis Kibe Mwaniki; Appellant: Mary Wangechi Kamara; Respondent: Rose Muthoni Kamara; Respondent: Rahab Wanjiku Kamara; Respondent: Nelson Kamara Mwaniki
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Application E047 of 2025
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time and Substitution of Appellant
- Outcome
- application allowed
- Judges
- S ole Kantai
- Legal Topics
- Extension of Time, Substitution of Parties, Succession Proceedings, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Francis Kibe Mwaniki
Applicant
Mary Wangechi Kamara
Appellant
Rose Muthoni Kamara
Respondent
Rahab Wanjiku Kamara
Respondent
Nelson Kamara Mwaniki
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time and Substitution of Appellant
Legal Issues
- 1 Whether the applicant should be granted extension of time to substitute the deceased appellant with himself in the pending appeal and application.
- 2 Whether the applicant has provided sufficient reason for the delay in seeking substitution.
- 3 Whether the respondents would suffer prejudice if the application is granted.
Ratio Decidendi
The court found that the applicant had provided a reasonable explanation for the delay in seeking substitution, namely the period of mourning and the time required to obtain letters of administration ad litem. The court noted that the matters pending in court survive the deceased and that substitution is necessary to enable their prosecution. The court was not persuaded that the respondents would suffer any prejudice if the application was allowed. Applying the principles from Leo Sila Mutiso v. Rose Hellen Wangari Mwangi, the court exercised its discretion in favour of the applicant and granted the extension of time and substitution sought.
Court Disposition
application allowed
Orders
- The Motion for extension and/or enlargement of time and substitution is allowed.
- No order as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
Mwaniki & another v Kamara & 2 others (Civil Application E047 of 2025) [2025] KECA 1236 (KLR) (11 July 2025) (Ruling)
Neutral citation: [2025] KECA 1236 (KLR)
Republic of Kenya
In the Court of Appeal at Nyeri
Civil Application E047 of 2025
S ole Kantai, JA
July 11, 2025
Between
Francis Kibe Mwaniki
Applicant
and
Mary Wangechi Kamara
Deceased
and
Rose Muthoni Kamara
1st Respondent
Rahab Wanjiku Kamara
2nd Respondent
Nelson Kamara Mwaniki
3rd Respondent
(An application for extension of time and/or enlargement of time for the applicant to substitution the appellant against the Judgments of the High Court at Nyeri (F. Muchemi, J.) delivered on 7th October, 2021 in H.C. Succ. Cause No. 533 of 2012)
Ruling
1. I am asked in the Motion on Notice said to be brought under rules 4, 44, 53 and 102(3) of the Court of Appeal Rules and any other enabling provisions of law for leave to revive Civil Appeal No. E139 of 2022 and Civil Application No. E078 of 2022 which have abated; that I be pleased to grant an extension and/or enlargement of time for the applicant to substitute the appellant on the legal representation of his estate; that I be pleased to substitute the appellant Mary Wangechi Kamara with Francis Kibe Mwaniki in the said Civil Appeal No. E139 of 2022 and Civil Application No. E078 of 2022.
2. In grounds in support of the application and in a supporting affidavit of Francis Kibe Mwaniki it is stated that the appellant in the said appeal and application Mary Wangechi Kamara died on 9th June, 2023 and the applicant Francis Kibe Mwaniki wishes to substitute the deceased; that 1 year has since lapsed since the deceased died; that delay in substitution resulted from the fact that the family of the deceased was grief-stricken due to her death; that there was also delay in obtaining letters of administration ad litem; the applicant has now obtained those letters and time should be thus enlarged.
3. There is a replying affidavit by the 1st respondent Rahab Wanjiku Kamara who says that she and the other respondents are also children of the deceased; that the application should be dismissed; that the applicant wants to be an administrator “…on top of another administration cause to obfuscate the issues and avoid confirmation of grant….”; that the applicant wants to delay Nyeri High Court Succession Cause No. 533 of 2012, a family succession dispute spanning over 15 years while the estate continues being wasted pending confirmation of grant; that the matter at the High Court should be fast-tracked; that if I allow this application it will cause hardship to the family; that the application as presented is bad in law, vexatious and an abuse of the process of the court.
4. I have seen limited grant of letters of administration ad litem issued to the applicant in High Court of Kenya at Nyeri in Succession Cause No. E005 of 2025 In the matter of Mary Wangechi Kamara (deceased) issued on 12th March, 2025.
5. The principles that apply in an application of this nature were well summarized in the oft-cited case of Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi [1999] 2 EA 231 as follows:"It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well stated that in general the matters which this Court takes into account in deciding whether to grant an extension of time, are first, the length of the delay, secondly, the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted, and fourthly, the degree of prejudice to the respondent if the application is granted."
6. The deceased died on 9th June, 2023. There are matters pending in court which survive her. The applicant has obtained letters of administration ad litem to prosecute those matters. It is necessary in those circumstances that the deceased be substituted to enable the applicant to continue those pending matters. I cannot see any prejudice that the respondents would suffer if I allow the application. There is a reasonable explanation for delay in bringing the application.
7. I allow the Motion. I make no order on costs in the circumstances.
DATED AND DELIVERED AT NYERI THIS 11TH DAY OF JULY, 2025. S. OLE KANTAI……………….…………….JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR