In re Estate of Wanji alias Fredrick SM Wanjie (Deceased) (Civil Application E049 of 2026) [2026] KECA 1570 (KLR) (31 July 2026) (Ruling)

In re Estate of Wanji alias Fredrick SM Wanjie (Deceased) (Civil Application E049 of 2026) [2026] KECA 1570 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1570 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Application E049 of 2026 LA Achode, JA July 31, 2026 IN THE MATTER OF THE ESTATE OF FREDRICK STEPHEN MWANGI WANJI alias FREDRICK SM WANJIE (DECEASED) Between Phillis Muthoni Mwangi Applicant and Samuel Maina Mwangi Respondent (Being an application for extension of time to file appeal against the Judgment of the High Court of Kenya at Nyeri (Githua J) dated 29th April 2026 in Succession Appeal No. E011 of 2023) Ruling 1.By a Notice of Motion dated 2nd July, 2026, expressed to be brought under rule 49 of the Court of Appeal Rules, 2022, the applicant, Phillis Muthoni Mwangi has brought an omnibus application seeking for orders:1.That this Honourable Court do grant her leave to file an appeal from the judgment of the High Court.2.That upon granting prayer 1 above, this Honourable Court be pleased to extend the time for filing and serving the Record of Appeal3.That this Honouralbe Court be pleased to deem the Notice of Appeal dated 15th May, 2026 as properly filed.4.That the Honourable Court do issue orders for stay of execution of the judgment and subsequent orders of the superior court. 2.The first prayer in which the applicant seeks leave to file an appeal from the judgment of the High Court is overtaken by events, in view of the Supreme Court decision in Eliud Mwendia Wandi vs Kevin Wanjohi Muchira: SC Petition No. E029 of 2024, where the Supreme Court ruled that parties do not require leave from the High court to appeal to the Court of Appeal in succession matters. Parties have an automatic constitutional right to appeal from decisions made by the High court in original succession matters. Therefore, the applicant need not seek leave to appeal from the decision of the High Court. 3.The second and third prayers seek that upon granting prayer 1 above, the Court be pleased to extend the time within which to file and serve the Record of Appeal, and that the Notice of Appeal dated 15th May, 2026 be deemed as properly filed. The fourth prayer seeks an order for stay of execution of the judgment and subsequent orders of the superior court. 4.Under the Court of Appeal Rules 2022 jurisdiction to entertain a motion for leave to extend time is provided for in rule 4 and is exercised by a single Judge, whereas jurisdiction to grant an order for stay of execution, reposes under rule 5 (2)(b) and is exercised by a full bench. 5.Omnibus applications that lump together prayers, which invoke the jurisdiction of the Court indifferent formats of the benches are untidy, and they cause the registry some anxiety, not knowing where to list them for hearing. As it is in this matter, only prayers 2) and 3) that are brought under rule 4 are properly before me as a single Judge and those are the ones I will proceed to consider in this ruling. 6.The grounds of the application as set out on the face thereof and deposed in the supporting affidavit sworn on 20th May, 2026 by the applicant are that she was greatly aggrieved by the judgment of the superior court delivered on 29th April, 2026. She filed a Notice of Appeal on 19th May, 2026 which according to her, was three days after the lapse of the fourteen days’ timeline required for lodgment. 7.The delay is attributed to a misapprehension in the computation of time to lodge the notice of appeal. It is said to be an honest mistake by counsel, which should not be visited upon the applicant. The applicant believes she has an arguable appeal with chances of success as demonstrated in the draft memorandum of appeal annexed. 8.The applicant filed submissions dated 16th July, 2026, through M/s Wangechi Gathua Law Advocates, restating what was deposed in her supporting affidavit. She relies on the case of Erasto Othiambo Muga, Esther Ajwang Nyangure and 2 others: (2020) KECA 242 (KLR), and the case of Fakir Mohamed vs Joseph Mugambi & 2 others C.A No. Nai 332 of 2004, cited in the case of Riccado Faneli & others vs Frigrielli Grazianno [2015] KECA 186 KLR, to urge this Court to find that, premised on the propositions in these authorities, a delay of three days is not inordinate or unreasonable, and allow the application for extension of time. 9.The respondent Samuel Maina Mwangi, filed a replying affidavit sworn on 16th June 2026 in opposition to the application. M/s Waithira Mwangi and Co. Advocates filed submissions dated 20th July, 2026 on his behalf. The respondent argues that the foundation on which an appeal comes into existence is pursuant to a proper/valid notice of appeal filed and served within statutory timelines. That the judgment of the superior court that is challenged herein was delivered on 29th April, 2026, and taking into account that 1st May 2026, was a public holiday, the statutory period of 14 days lapsed on 13th May, 2026. 10.The respondent contends that the notice of appeal herein was filed on 20th May, 2026, 6 days after the lapse of the statutory period. That without giving any explanation for the delay, the applicant is calling upon this Court to breathe life into what was irregularly filed in Court without leave. He cites the case of C.A No. 788 of 2025: Charles Kariuki vs Ndiema Mukara to urge that the applicant cannot first file a notice of appeal without leave, and thereafter, does not seek for extension of time, but seeks to have it deemed as properly filed. He has urged the Court to strike out the Notice of Appeal as being irregular. 11.The application before me is brought under Rule 4 of the Court of Appeal Rules which confers discretionary power upon the Court to extend the time limited as follows:“.…the Court may, on such terms as it thinks just, by order extend the time limited by these rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of that act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.” 12.The principles which guide the Court in the exercise of the discretion provided under Rule 4 were restated in the case of Wasike v Swala [1984] KLR pg591, where the Court of Appeal stated as follows:“As Rule 4 now provides that the Court may extend the time on such terms as it thinks just, an applicant must now show, in descending scale of importance, the following factors:a.That there is merit in his appeal;b.That the extension of time to institute and file the appeal will not cause undue prejudice to the respondent; andc.That the delay has not been inordinate.” 13.The first issue for determination is whether there is merit in the appeal for the application to extend time to file the Notice of Appeal to be granted. It is therefore imperative for this Court to consider whether there is possibility of success in the appeal if allowed to be urged. In the case of Sammy Mwangi Kiriethe & 2 others v Kenya Commercial Bank Ltd [2020] eKLR, the Court of Appeal stated as follows;“As regards to the chances of success of the intended appeal, all that a single judge is called upon to do is to make a prima facie observation, otherwise there would be a danger of usurping the powers of the full court if at all the application for extension of time is allowed and the appeal is finally heard.(See also; Athuman Nusura Juma v Afwa Mohamed Ramadhan, CA No. 227 of 2015). 14.Whether or not the intended appeal is arguable is not an issue that can be determined with finality by a single judge. I note that the appeal concerns a succession matter in which the applicant intends to urge on appeal that the trial Judge applied section 40 of the Law of Succession Act in complete disregard of sections 6, 7, and 8 of the Matrimonial Act. In the limited jurisdiction the Court has to deal with this issue in the application, it is my considered view that it is not idle and is worthy of being interrogated on appeal. 15.Regarding whether the delay herein is inordinate, the impugned judgment was delivered on 29th April 2026, and the Notice of Appeal was filed on 19th May, 2026, five or six days beyond the requisite timeline. The delay is attributed to the advocate’s inadvertence in the computation of time. I am alive to the fact that a delay even for one day, is a delay nonetheless. In my view however, the delay herein is not inordinate and the reason is excusable. 16.The last issue for consideration is whether granting the extension of time, will cause undue prejudice to the respondent. The applicant submits that it will not cause any prejudice to the respondent. The respondent did not submit not on this issue and in any case, when the appeal is filed the respondent will have a chance to challenge it. 17.Taking into account the principles guiding this Court in an application for extension of time, and having weighed the rival arguments of the parties, I am satisfied that the application is meritorious. That said, I bear in mind the holding of the Supreme Court in Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 Others [2013] eKLR that:“By filing an appeal out of time before seeking extension of time, and subsequently seeking the court to extend time and recognize such a ‘an appeal’, is tantamount to moving the court to remedy an illegality. This the court cannot do” 18.Consequently, the Notice of Motion dated 2nd July, 2026 is allowed with the following orders:i.The applicant be and is hereby granted leave to file an appeal out of time against the ruling of Hon Githua J.ii.The appeal to be filed within 14 days of the date of this ruling.iii.The costs of this application shall abide the determination of the appeal.It is so ordered. DATED AND DELIVERED AT NYERI THIS 31ST DAY OF JULY, 2026.L. ACHODE........................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR