https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1596

Nderito & 2 others v Nderito & another (Civil Application E063, E064 & E065 of 2026 (Consolidated)) [2026] KECA 1596 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1596 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E063, E064 & E065 of 2026 (Consolidated) K M'Inoti, JA July 31, 2026 Between Florence Auma Nderito 1st Applicant Tania Wariara Nderito 2nd Applicant Wambui Nderito 3rd Applicant and Angela Wambui Nderito 1st Respondent John Kangethe Nderito 2nd Respondent (Application for extension of time to appeal from the ruling and order of the High Court of Kenya at Nairobi (Ongeri, J.) dated 29th November 2019 in HCSC No. 307 of 2006) Ruling 1.Before the Court are three related applications, namely Civil Application No. E063 of 2026, No. E064 of 2026 and No. E065 of 2026. They are all dated 12th February 2026. Two of the applications arise from the same ruling and order of the High Court of Kenya at Nairobi (Ongeri, J.) dated 29th November 2019. The other application arises from the ruling and order of the High Court of Kenya at Nairobi (Muigai, J.) dated 28th August 2015. All the three applications arise from the same Succession Cause and involve the same estate, the same parties and the same issues. 2.In Civil Application No. E063 of 2026 and Civil Application No E063 of 2026, the applicants seek leave to appeal against the ruling dated 29th November 2019 (Ongeri, J.), and extension of time to appeal from the said ruling. In addition, they pray that the notices of appeal filed on 13th March 2025 in both applications be deemed to have been filed on time. I must confess that I am unable to fathom why the applicants have made two separate and distinct applications seeking the same orders as relates to the ruling by Ongeri, J. 3.In Civil Application No. E065 of 2026, the applicants seek leave to appeal from the ruling and order of the High Court of Kenya at Nairobi (Muigai, J.) dated 28th August 2015. They also pray for extension of time to appeal against the said ruling and an order deeming their notice of appeal dated 13th March 2025 to have been filed on time. 4.Because the applications involve the same parties, the same estate and the same issues, this ruling determines all the three applications to the extent that they seek extension of time to appeal. It will add no value to write three separate rulings saying essentially the same thing on the issue of extension of time. 5.There are two preliminary observations I wish to make before embarking on the ruling. The first is the untenable mixing up in the same application(s) of prayers that can only be granted by a single judge and those that can only issue from the full Court. The Court has decried this practice as a waste of time, a cause for delay, and a baseless invitation to the Court to hear a single application in instalments. An application for extension of time under rule 4 of the Court of Appeal Rules is a matter for a single judge, while an application for leave to appeal under rule 41 of the Court of Appeal Rules is a matter for the full Court. This disconcerting practice has to cease forthwith. 6.In Abdulrazak Rageh Haji v. Mahadho Abdulrazak Adichare, CA No. E030 of 2020 the Court observed as follows regarding this disconcerting practice:“Before me is one of those omnibus applications that this Court has decried time and again. (See, for example, Riccardo Fannelli & 2 others v. Frigrieri Graziano, Civil Application No. 51 of 2015 and Christopher Iddi Moto & 15 others v. Chiriba Nyambu Barua, Civil Application No. 43 of 2014). The applicant seeks extension of time to file a notice of appeal and in the same application, an order for stay of execution of the judgment and decree that he intends to appeal. It is not rocket science to appreciate that under the Court of Appeal Rules an application for extension of time is the remit of a single judge whilst an application for stay of execution is the business of the full court. How exactly the same application can be heard in instalments, first by a single judge, and subsequently by the full Court, is not clear to me. Plus, a party cannot obtain stay of execution of a decree or judgment of the High Court without first filing a notice of appeal!” 7.Secondly, as a single judge, I have no jurisdiction to deal with an application for leave to appeal, which is the preserve of the full Court. I do note, however, that in its judgment rendered on 31st March 2026 in Wandi v. Muchira [2026] KESC 29 (KLR) the Supreme Court held that no leave is required to appeal to this Court from a decision of the High Court exercising its original jurisdiction in a succession cause. The Court rendered itself thus:“We therefore come to the inevitable conclusion that there is no legal basis for imposing a requirement of leave as a prerequisite for lodging an appeal to the Court of Appeal against a decision of the High Court rendered in the exercise of its original jurisdiction in a succession matter. Such a requirement, not being anchored in either the Constitution or statute, cannot properly be sustained.” 8.I note further that the three applications before me seeking leave to appeal were filed before the above judgment of the Supreme Court. I will say no more as regards the prayers for leave to appeal, and leave it the applicants’ devices to determine what to do with the said prayers. 9.The brief background to the applications is that the dispute involves the estate of Peter Charles Nderito (deceased). The 1st applicant, Florence Auma Nderito, is the widow of Martin Mathenge Nderito (Mathenge), a son the deceased, who is himself deceased. The other two applicants are the daughters of the said Mathenge. The bone of contention in the estate is the property known as LR No. 7741/286 Kitusuru, Nairobi (the suit property). 10.At the stage of confirmation of grant of letters of administration to the estate of the deceased, the applicants raised an objection, staking claim to the suit property. They contended that Mathenge had redeemed, at the request of the deceased, the parcel of land known as LR No. 7741/133/2 of which the suit property was a subdivision, from foreclosure by a bank and thereafter the deceased had transferred one of the subdivisions, namely 7741/285 to Mathenge in consideration of his salvaging the original title. The applicants, however, contended that they were also entitled to a share of the suit property. 11.By the judgment dated 28th August 2015, Muigai, J. held that the suit property was part of the estate of the deceased and awarded the same to the respondents, Angela Wambui Nderito and John Kang’ethe Nderito in equal shares. Its apt to point out that the respondents are children of the deceased, sister and brother to Mathenge. In the final order, however, the learned judge held that the suit property was part of the estate of the deceased, available for distribution to the beneficiaries, raising the question whether the suit property was meant for Angela Wambui Nderito and John Kang’ethe Nderito or to all the beneficiaries of the deceased. 12.The court further appointed the 1st respondent the administrator of the estate of the deceased and directed her, within 90 days, to apply for confirmation of grant, with proposals on distribution of the remaining assets of the estate that were available for distribution. 13.It is obvious that the applicants did not take any steps to appeal against the decision of Muigai, J. First forward, on 15th December 2015, the 1st respondent filed summons for confirmation of grant pursuant to the judgment dated 28th August 2015. The applicants filed an objection to the summons. 14.By the ruling dated 29th November 2019, Ongeri, J. directed that the mode of distribution be amended to take into account the order of Muigai, J. awarding the suit property to the respondents. Again, the applicants did not take any steps to appeal against the ruling by Ongeri, J. 15.Ultimately, on 3rd October 2024, Chemitei, J. confirmed the grant, with the suit property being inherited by the respondents in accordance with the ruling of Muigai, J., as interpreted by Ongeri, J. 16.On 13th March 2025, after a period of almost ten years after the ruling of Muigai, J. and a period of more than six years after the ruling of Ongeri, J., the applicants applied in the High Court for leave and extension of time to appeal against the ruling of Chemitei, J. confirming the grant. It is instructive to point out that even at that stage, they did nothing by way of appeal against the rulings by Muigai and Ongeri, JJ. 17.Chemitei, J. dismissed that application vide a ruling dated 29th January 2026. In the pertinent part of the ruling, the learned judge expressed himself as follows:“The prayers for appeal in my view have come too late in the day. I do not find any plausible reason why the (applicants) failed to file a proper notice of appeal or for that matter file their appeal within a reasonable or appropriate period. Blaming (their) counsel previously on record is too pedestrian in the circumstances.” 18.The applicants’ next port of call was in this Court vide the applications now before me. In the affidavits in support of the applications all sworn on 12th February 2026 by the 1st applicant, the applicants have gone to great lengths in setting out the background, history and merits of their case. But at this stage, what is critical is the explanation for the delay running to almost 11 years since the ruling of Muigai, J. and seven years since the ruling of Ongeri, J. 19.The reasons advanced by the applicants to explain the delay is that Muigai J. ordered that an alternative of distribution of the deceased’s estate be filed for hearing and determination by the court and that because of that order, the applicants had legitimate expectation and honest belief that the issue of distribution of the suit property would be canvassed and determined upon the filing of the different mode of distribution. For that reason, they saw no reason to appeal. 20.The applicants add that the decision of Ongeri, J. was per in curium and prejudicial to them and that it constituted discrimination against them contrary to Article 27 of the Constitution and was in violation of section 29 of the Law of Succession Act. 21.The applicants also blame their former advocates, claiming that they relied on the advice of the said advocates to the effect that the ruling by Ongeri, J. did not exclude them from the distribution and sharing of the suit property. 22.While the applicants readily concede that “there has been an appreciable period of time since the date of the ruling of 29th November 2019” (by Ongeri, J.) they nevertheless contend that the reasons for the delay have been adequately explained in the what that I have set out above. 23.In their three sets of written submission all dated 21st April 2026, the applicants reiterate the above arguments and submit that the power to extend time is discretionary, and that among the factors to be borne in mind include the length and reasons for the delay, the prima facie merits of the appeal, and the degree of prejudice to either party. They cite the ruling of this Court in Mwangi v. Kenya Airways Ltd [2003] KLR 486 in support of the submission. 24.It is also the applicants’ submission that they stand to suffer great prejudice and injustice if they are disinherited from the estate of the deceased, and that the respondents will not suffer any prejudice. 25.The 2nd respondent, John Kang’ethe Nderito opposed the applications vide three replying affidavits, one sworn on 15th May 2026 and two on 22nd May 2026. It is his contention that the applications now before the Court are an afterthought and utterly devoid of merit. 26.It is contended that the status and distribution of the suit property was determined on 28th August 2015 by Muigai J. rather than on 29th November 2019 by Ongeri, J. and that the latter judge merely upheld the decision of Muigai, J. It is further contended that the decision of Muigai, J. cannot be challenged through the subsequent decisions of Ongeri, J. and Chemitei, J., which merely upheld it. 27.The 2nd respondent further argues that the applicants were all along fully aware of the decisions of Muigai and Ongeri, JJ. but opted not to file even a notice of appeal. He adds that throughout the proceedings, the applicants were represented by different advocates and therefore cannot feign ignorance of the meaning and tenor of the two decisions. It is the 2nd respondent’s view that the applicants have been indolent and guilty of laches and have completely failed to explain their inordinate delay. 28.The 2nd respondent further contends that the applicants have not been candid with the Court and have failed to disclose that on 12th January 2023, they applied for review of the ruling of Muigai, J., which application was dismissed by Odero, J. on 17th November 2023. In light of that application, it is urged that the applicants cannot claim honest belief and legitimate expectation that the suit property would be re-distributed and neither can they claim ignorance of the effect of the ruling or blame their advocates for alleged lack of information. 29.The 2nd respondent also contends that the 1st applicant has no locus standi to file the application because she is not a beneficially of the estate of the deceased and that the intended appeal has no chances of success because there is no confusion or ambiguity in the ruling of Muigai, J. as pertains to the distribution of the suit property. It is contended that the applicants are deliberately misleading the court when they claim that they have been disinherited, yet the Court found that the deceased made a gift intervivos to his son Mathenge of LR No. 7741/285 Kitusuru, Nairobi. That property, which is adjacent to the suit property, was awarded by the court to the applicants, and on it they have a permanent home. It is also contended that it is the respondents who actually got the short end of the stick because by dint of the decision of Muigai, J., they share the suit property, which is 1.25 acres, while their brother Mathenge alone got the adjacent LR No. 7741/285 Kitusuru, Nairobi, which also measures 1.25 acres. 30.The 2nd respondent further contends that the respondents stand to suffer more prejudice if I grant this application in that the succession proceedings started twenty years ago in 2006 and they ought to come to an end. The 2nd respondent bemoans the fact that the applicants continue to exclusively enjoy the adjacent property distributed to them, but are hell bent on denying the respondents their right to the suit property. 31.In three sets of submissions dated 15th May 2026 and 25th May 2026, the 2nd respondent relies on the decision of this Court in Leo Sila Mutiso v. Hellen Wangari Mwangi [1999] 2 EA 231 for the principles that guide the Court in an application for extension of time. He also cites the ruling in Makokha & 2 Others v. Center Star Co Ltd [2022] KECA 744 (KLR) in which the Court decline to extend time following a delay of one year and four months. Also relies upon Kingsway Motors (K) Ltd v. Southern Credit Banking Corporation Ltd [2001] KECA 183 (KLR) for the proposition that an applicant for extension of time must demonstrate good faith in explaining delay. 32.I have carefully considered these applications in so far as they seek extension of time to appeal. Before delving into the merits, I must dispose of the 2nd respondent’s objection that the 1st applicant has no locus standi in this matter and has no capacity to swear the affidavit supporting the three applications. I do not think the objection is well founded. It is common ground that the 1st respondent is the widow of Mathenge, a son of the deceased. She has been in these proceedings in the trial court without any objection to her standing. But above that, she has attached to the affidavits in support of the application copies of the grant of representation indicating that she is the duly appointed administrator of the estate of Mathenge. I find she has sufficient interest in the matter. 33.Turning to the merits of the application, it is common ground between the parties that the power vested in the Court by rule 4 of the Court of Appeal Rules to extend time is discretionary and exercised on the basis of well established principles. The factors that the Court takes into consideration in an application for extension of time include that:i.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;ii.a party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;iii.whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;iv.the length of delay;v.the reason(s) for the delay;vi.the prima facie prospects of the appeal if the application is granted; andvii.the prejudice that is likely to be suffered by each party.(See Nicholas Kiptoo Korir arap Sarat v. IEBC & 7 Others [2014] eKLR, Sila Mutiso v. Rose Hellen Wangari Mwangi [1999] 2 EA 231 and Fakir Mohamed v. Joseph Mugambi & 2 Others [2005] KECA 340 (KLR). 34.In Imperial Bank Ltd (In Receivership) & Another v. Alnashir Popat & 18 Others [2018] eKLR the Court restated the principles as follows.“Some of the considerations to be borne in mind while considering an application for extension of time include the length of the delay involved, the reason(s) for the delay, the possible prejudice, if any, that each party stands to suffer depending on how the court exercises its discretion; the conduct of the parties; the need to balance the interests of a party who has a decision in his or her favour against the interest of a party who has a constitutionally underpinned right of appeal; the need to protect a party’s opportunity to fully agitate its dispute, against the need to ensure timely resolution of disputes; the public interest issues implicated in the appeal or intended appeal; and whether, prima facie, the intended appeal has chances of success or is a mere frivolity.” 35.I have no doubt in my mind that the decision which determined the distribution of the suit property was the ruling of Muigai, J. dated 28th August 2015. The subsequent rulings of Ongeri and Chemitei, JJ. merely deferred to the ruling of Muigai, J. In computing the period of delay therefore, the starting point is the date of the ruling of Muigai, J. The application for extension of time was made on 12th February 2026, over 10 years later. To conceptualise the kind of delay involved in these applications, one needs to appreciate that a notice of appeal is required to be filed within 14 days of the impugned judgment or ruling, and the record of appeal within 60 days of the filing of the notice of appeal. Even where a certificate of delay is allowed, the appeal has to be filed within a reasonable time, relative to the prescribed timelines. The ruling of Ongeri, J. itself was more than 6 years before the applications for extension of time. 36.Also relevant to bear in mind is Article 159 (2) (b) of the Constitution which demands in no uncertain terms that justice shall not be delayed. As far as the provision is relevant to litigants, it requires that they observe prescribed timelines and not to inordinately violate those timelines. 37.In these circumstances, I do not hesitate to find that the delay involved in these three applications is unambiguously and utterly unreasonable. What then is the explanation for that unreasonable delay? The applicants state that they expected that an alternative distribution matrix would be filed as directed by Muigai, J. and that they had legitimate expectation and honest belief that the issue of distribution of the suit property was still live and would be determined upon the filling of the alternative distribution matrix. Lastly, they blame their former advocates who advised them that the ruling of Ongeri, J. did not exclude the suit property from distribution. 38.I think these are the reasons that Chemitei, J. very aptly described as “pedestrian”, an adjective meaning uninspired and lacking in imagination. As is aptly clear, Muigai, J. awarded the suit property to the two respondents herein in equal shares. The order that the applicants hang on stated as follows:“4.Any party with an objection to file alternative mode of distribution and the court shall determine.” 39.First, the respondents got the suit property as they had sought. So reasonably, they would not have been the parties to file an objection to distribution of the suit property to themselves. If there were any parties who could reasonably have filed an alternative mode of distribution, it was the applicants, who were claiming the suit property or part thereof for themselves in addition to LR No. 7741/285 Kitusuru, Nairobi, which was given to them. So, this begs the question, who were the applicants waiting for to present an alternative mode of distribution? They themselves were waiting to do so after ten years? I find this to be an excuse rather than a genuine and honest explanation 40.The contention that the applicants had legitimate and honest belief that the suit property would be distributed upon the filling of an alternative matrix also collapses for the same reason. There is nothing honest or legitimate in the applicant’s conduct, particularly after failing to disclose to this Court that three years before the making of the present applications, they had unsuccessfully applied to the High Court for review of the ruling of Muigai, J. It is plainly obvious that the applicants applied for review of the ruling because they knew and appreciated that the suit property was awarded to the respondents and was therefore not available for distribution to them. 41.The attempt to shift blame to their counsel is equally lame. The applicant’s could not have believed that the suit properly was available for distribution when they had already made an application to review the ruling of Muigai, J. which awarded the suit property to the respondents. If the applicants honestly and legitimately believed that the suit property was available for distribution, then it beats reason why they applied for review of the ruling of Muigai, J. 42.The respondents contended that throughout the proceedings, the applicants have been represented by several different firms of advocates, a position that is not controverted. The advocates whom the applicants blame for misleading or not properly advising them are neither named nor otherwise identified. So, how’s the Court supposed to fix blame and find that an unnamed advocate is to blame? This non-disclosure of the advocates that the applicant’s blame is further evidence of suppression of relevant information, which would have assisted the Court. 43.As explained by the Supreme Court, extension of time is an equitable and discretionary remedy available only to a deserving party. A cardinal principle in the award of an equitable remedy is that a party seeking such a remedy must show that he or she is deserving of an equitable remedy, by being candid and honest. I regret that I do not perceive such qualities in these applications. 44.The respondents argue that they stand to suffer great prejudice having been in court for twenty years. They further point to lack of candour on the part of the respondents who claim they stand to suffer prejudice by being disinherited, yet the court already awarded them alone the property adjacent to the suit property, measuring in area the same dimensions as the suit property. 45.I need not dwell on the prospects of the applicant’s intended appeal, which a single judge is, in any event, supposed to consider on a prima-facie basis. In Athuman Nusura Juma v. Afwa Mohamed Ramadhan, CA No 227 of 2015, the Court reiterated that a single judge should not make definitive findings on the issue and stated:“This Court has been careful to ensure that whether the intended appeal has merits or not is not an issue determined with finality by a single judge. That is why in virtually all its decisions on the considerations upon which discretion to extend time is exercised, the Court has prefixed the consideration whether the intended appeal has chances of success with the word “possibly”. 46.The finding that the delay involved in these applications is inordinate, that the delay has not been explained candidly and honestly, and that by their conduct the applicants have disentitled themselves to the equitable remedy of extension of time, is sufficient to dispose of the three applications, in so far as they seek extension of time. 47.Accordingly, I find no merit in the three applications in so far as they seek extension of time to appeal, and dismiss them with costs to the respondents. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.K. M’INOTI...................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.