https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10639

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **SUCCESSION CAUSE NO. 72 OF 2012** **ELIZABETH WAWIRA NJAGI………….…….……1ST ADMINISTRATOR/APPLICANT** **VERSUS** **LEAH WAMBUI NJERU..…..……….....................2ND ADMINISTRATOR/RESPONDENT** **LYDIA WAMBURA NJERU.…….….....................3RD ADMINISTRATOR/RESPONDENT** **GRACE KATHUNGU NJERU..………………………..............................4TH RESPONDENT** **RULING** *The application* 1. By a Notice of Motion dated 15th April, 2025 and filed on **5th June 2025**, the applicant seeks specific orders as follows: * + 1. *Spent.* 2. *Spent.* 3. *That this Honourable Court be pleased to grant leave to the Applicant herein to file appeal against the judgement of this Court delivered on* ***20th February 2025.*** 4. *That pending the hearing and determination of prayers two (2) and three (3) above, this Honourable Court be pleased to grant temporary stay of execution pending the hearing and determination of the intended appeal.* 5. *That the costs of the Application be provided for. (sic)* 2. The application was supported by the supporting affidavit of the applicant setting out the applicant’s case that immediately after the delivery of the judgement he fell sick hence the slight delay in making the present application. 3. She avers that she has an arguable appeal with very high chances of success demonstrated in the draft Memorandum of appeal attached herewith. No prejudice will be caused to the Respondents as they are in occupation of the land. Lastly, she avers that if stay orders are not granted the Respondents may execute the judgement and the Applicant who was not given anything from the deceased estate will forever lose her right thereof. ***Responses*** 1. The 2nd and 3rd Respondents filed a Replying Affidavit of 8/10/2025 opposing the application as a blatant delay by the Applicant in filing the application which delay has not been explained thus a clear abuse of the court process. This Honourable court would not be in a position to determine whether the Applicant has an arguable appeal as the same would amount to the court sitting on its own appeal having determined the matter. Lastly, the respondent avers that the applicant has not provided security in court. 2. The 4th Respondent filed a Replying Affidavit of 16/10/2025 urging that the delay of about 2 months in filing the appeal is inordinate and it has not been explained; an indication that the applicant is an indolent litigant. The respondent avers that the applicant has not met the grounds of granting stay of execution and she has not demonstrated she has an arguable appeal which has high chances of success she has no legitimate grievance having stated that her children benefited and were counted as children of the deceased. The applicant has not demonstrated /elaborated what prejudice she will suffer if this application is not allowed having stated that she did not lodge the appeal in good time as there is a delay of more than 2 months which has not reasonably been explained. Lastly, the issues raised in the draft memorandum of appeal are only in respect to the applicant being declared as a wife which grounds do not raise any serious questions to be put before the appellate court so as to justify the orders sought. *Supplementary Affidavit* 1. The applicants filed a supplementary affidavit of 31/10/2025 elaborating that she was admitted on 28th February, 2025 while the judgment was delivered on 20/2/2025. Between 20/2/2025 and 28/2/2025 she was looking for funds to file the instant application only to fall sick on 28/2/2025. She was discharged from hospital on 4/3/2025 but could only file the instant application on 15/4/2025 after she got funds to do so. She is a peasant farmer and her funds were taken up by the medical bills. ***Applicant’s submissions*** 1. The Applicant seeks for leave to appeal against the judgment of this court delivered on 20th February, 2025. She is not seeking to appeal out of time but for leave to appeal. The judgment was delivered on 20.2. 2025. Eight (8) days later from 28/2/2025 the Applicant was admitted in hospital and discharged on 4/3/2025 vide supplementary affidavit sworn on 31/10 2025. The applicant has averred that between 20/2/2025 and 28/2/2025 she was looking for funds to file the instant application only to fall sick on 28/2/2025. The funds went to cater for the ailment. Upon discharge for hospital on 4/3/2025 she got funds on 15/4/2025 and filed the instant application. She is a peasant farmer and has no stable means to earn a living. 2. The delay in filing the instant application has been explained and is not inordinate. 3. On leave to appeal, the applicant cited ***Rhoda Wairimu Karanja & Another vy. Mary Wangui Karanja & Another*** (2014) eKLR, where the court made the following observations with regards to appeals in succession matters against the decisions of the High Court exercising its original jurisdiction: *“We think we have said enough to demonstrate that under the Law of Succession there is no express automatic right of appeal to the Court of Appeal: that an appeal will lie to the Court of Appeal from the decision of the High Court exercising original jurisdiction with leave of the High Court or where the application for leave is refused with Ieave of this court. Leave to appeal will normally be granted where prima facie it appears that there are grounds which merits serious consideration.* 1. Counsel for the 2nd and 3rd Respondents indicated that she would rely on their replying affidavit of 8/10/2025 and file no submissions. ***4th Respondent’s submissions*** 1. The respondent submit that the instant application is for leave and it was not necessary to seek leave to appeal out of time for the period between 20.12.2025 to 20.3.2025 as the applicant was within the 30 days as provided for under Section 79G of the Civil Procedure Act. There no certificate of delay has been attached and no letter requesting for proceedings has been attached and hence it is evident that the delay was occasioned by the applicant herself having delayed in giving instructions to her former Advocate and they submit that equity only favours the vigilant and she is undeserving of the orders sought. 2. They submit that for time to be extended, the court must strike a fair balance between expeditious disposal of cases and an aggrieved party's right of appeal. The trial court delivered its judgment on 20.2.2025, the instant application was filed on 15.4.2025 and hence it was filed after 54 days which delay is inordinate. Although the applicant deponed that she will suffer prejudice, the same has not been elaborated. On the contrary. if leave to appeal out of time is allowed, the 4th respondent will suffer loss and will greatly be prejudiced by reopening the matter which was finalized on 20.2.2025. **Issue** 1. Whether the Applicant has met the threshold for grant of leave to appeal to the Court of Appeal and for extension of time to appeal out of time and stay of execution pending appeal. **Analysis** 1. Appeals arising from succession proceedings are governed by the Law of Succession Act, Cap 160 Laws of Kenya. The Act does not confer an automatic right of appeal to the Court of Appeal from decisions of the High Court exercising original jurisdiction in succession matters. The applicable principle was succinctly stated by the Court of Appeal in ***Rhoda Wairimu Karanja & Another v Mary Wangui Karanja & Another*** [2014] eKLR where the Court held that an appeal from the High Court in succession matters lies only with leave of the High Court or, where such leave is refused, with leave of the Court of Appeal. The Court further held that leave should ordinarily be granted where prima facie the intended appeal raises arguable grounds deserving serious judicial consideration. 2. The judgment sought to be appealed against was delivered on 20th February, 2025 while the present application dated on 15th April 2025 was filed on **5th June 2025.** The delay is therefore approximately 75 days from the date of judgment and 45 days outside the 30-day period allowed for appeal under section 79G of the Civil Procedure Act. It is not inordinate delay. 3. However, the Applicant has explained the delay by stating that she fell ill shortly after delivery of judgment and was admitted in hospital from 28th February, 2025 to 4th March 2025. Further, she deponed that due to her financial circumstances as a peasant farmer, she was unable to promptly raise funds for filing the application. 4. Although the delay herein is not insignificant, the Court is satisfied that the same has been reasonably explained. The Applicant annexed evidence of hospitalization and candidly explained her financial difficulties. The Court is enjoined to administer substantive justice under Article 159(2)(d) of the Constitution and should not shut out a litigant where sufficient cause has been shown. 5. On whether the intended appeal is arguable, this Court is not required at this stage to determine the merits of the intended appeal conclusively. It is sufficient if the Applicant demonstrates that the intended appeal raises bona fide issues worthy of consideration by the appellate court. In other words, that there are serious questions for consideration by the appellate court; that the appeal is not frivolous. The Court is mindful that an arguable appeal is not one that must succeed. 6. The draft Memorandum of Appeal raises issues touching on the Applicant’s claim as a beneficiary and the question whether the Court properly evaluated the evidence relating to her status and entitlement in the estate. These issues are not frivolous. 7. The Respondents have argued that they will suffer prejudice if the application is allowed. However, the prejudice likely to be suffered is delayed conclusion of the issue of the distribution of the estate and this is compensable by costs. On the other hand, denial of leave would permanently lock out the Applicant from exercising her undoubted right to approach the appellate court. 8. The Court is satisfied that on the test in ***Rhoda Wairimu Karanja*** case [*Rhoda Wairimu Karanja & Another v Mary Wangui Karanja & Another (2014) eKLR*], the applicant has demonstrated an arguable case for presentation before the Court of Appeal and the short delay in filing the appeal has been explained. The Court will, consequently, grant leave to appeal and leave to appeal out of time. In the meantime, the Court will preserve the status quo by an order that there shall be a stay of execution of the judgment of the Court delivered on 20th February 2025 pending hearing and determination of the Appeal. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds merit in the application dated 15/4/2025 and it is allowed in terms of Prayers Nos. 2 and 3 thereof. 2. The Court makes further consequential orders that the Memorandum of Appeal shall be filed within the next fourteen (14) days and the Record of Appeal within sixty (60) days hereof. 3. There shall be no orders as to costs. *Orders accordingly.* **DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Ms. Wangechi Munene for the 1st Administrator/Applicant. Ms. Kinuthia for Ms. Gitau for the 2nd & 3rd Respondents. Ms. Waweru for the 4th Respondent.