https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1356

Mathenge v Mwema (Civil Application E035 of 2026) [2026] KECA 1356 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1356 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Application E035 of 2026 M Ngugi, JA July 10, 2026 Between Newton Muthui Mathenge Applicant and Stephen Muriithi Mwema Respondent (Being an application for extension of time to file the notice of appeal and record of appeal out of time against the ruling and orders of the High Court of Kenya at Nyeri (Odero, J.) dated 27th February 2026 inNyeri High Court Succession Cause No. 145 of 2007) Ruling 1.In his application dated 2nd April 2026, the applicant, Newton Muthui Mathenge, seeks extension of time to file and serve a notice of appeal and record of appeal out of time against the ruling of the High Court at Nyeri (Odero, J.) dated 27th February 2026 in Nyeri High Court Succession Cause No. 145 of 2007. The application is brought under rule 4 of the Court of Appeal Rules and is supported by an affidavit sworn by the applicant’s advocate, Anthony Mwangi Ng’ang’a, on 2nd April 2026. 2.Mr. Ng’ang’a avers that the ruling the applicant seeks to appeal from was delivered on 27th February 2026; that upon delivery thereof, he informed the applicant vide a letter dated 2nd March 2026; that the applicant did not receive the said letter in time and only became aware of the ruling on 23rd March 2026 when he visited counsel’s office. 3.The applicant has annexed to his application a copy of the said ruling in which the court dismissed the applicant’s application dated 22nd November 2022. It held that the said application was res judicata, having been preceded by a similar application dated 13th May 2021 which was dismissed by F. Muchemi, J. on 3rd November 2022. 4.The respondent opposes the application by a replying affidavit sworn on 24th April 2026 and written submissions dated 8th May 2026. The respondent avers that the grant in the succession cause had been confirmed on 4th May 2021 and the applicant had since filed several applications calculated to delay the transmission process. He further avers that there has been inordinate and unexplained delay in bringing this application, and that the intended appeal lacks merit. 5.It is his contention that the applicant has not explained the period between 27th February 2026 and 23rd March 2026; that despite allegedly learning of the ruling on 23rd March 2026, he still waited until 2nd April 2026 to file the present application; that no notice of appeal had been lodged and no request for proceedings has been made. 6.The applicant has not filed submissions in support of his application. 7.Under rule 4 of this Court’s Rules, the Court has unfettered discretion to extend time for the doing of any act prescribed under the Rules. The factors to be considered on such an application are well settled. These are the length of the delay, the reason for the delay, (possibly) the chances of the intended appeal succeeding, and the degree of prejudice to the respondent should the orders sought be granted- see Leo Leo Sila Mutiso v. Rose Hellen Wangari Mwangi (1999) 2 EA 231 and Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR). 8.The ruling that the applicant seeks to appeal from was delivered on 27th February 2026. Under rule 77 of this Court’s Rules, the notice of appeal ought to have been lodged within fourteen days of the date of the ruling, but was not. The present application was filed on 2nd April 2026, about five weeks from the date of the ruling, and there was therefore a delay of about three weeks in lodging the notice of appeal. 9.Counsel for the applicant has averred that he informed the applicant about the ruling by a letter dated 2nd March 2026, but that he did not receive the communication in time and only learnt of the ruling on 23rd March 2026 upon visiting his advocates’ chambers. 10.I have noted the submission by the respondent that this explanation is not satisfactory in view of the fact that the mode of delivery of the letter was not disclosed. This is a pertinent point, bearing in mind the ease of digital communication available today. However, It may well be that the communication was not accessible digitally to the applicant. The period of delay is not inordinately long, however, and in the interests of substantive justice, the Court is minded to accept the explanation for the delay. 11.A further factor to be considered is the possibility of the appeal succeeding should the orders sought be granted. The applicant has not indicated the grounds he intends to raise on appeal against the decision of the High Court. I have read the decision of the court and I note that the application was dismissed on the basis that it was res judicata, a similar application by the applicant having been heard and dismissed by Muchemi J. It may be that he intends to argue that the doctrine was not properly applied, but I will not enter into the realm of speculation with respect to the arguability of the applicant’s intended appeal. 12.The final factor to consider is the degree of prejudice to the respondent should the order sought be granted. The respondent has submitted that the succession cause has been in court for many years, and that the application merely seeks to delay transmission of the estate of the deceased. Bearing in mind the fact that the intended appeal arises from succession proceedings, however, the interests of the parties may be best served by affording the applicant an opportunity to file and prosecute his appeal. Any prejudice that the respondent may suffer as a result of the delay can be compensated by an award in damages. 13.Accordingly, I hereby allow the application dated 2nd April 2026. The applicant shall file and serve his notice of appeal within seven (7) days from the date hereof. The record of appeal shall thereafter be filed in accordance with the provisions of the Court of Appeal Rules 2022. 14.The costs of this application shall be in the appeal. DATED AND DELIVERED AT NYERI THIS 10TH DAY OF JULY 2026.MUMBI NGUGI.................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR