https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7544

In re Estate of Titus Nduta Ngwili (Deceased) (Succession Cause 1040 of 2012) [2026] KEHC 7544 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7544 (KLR) Republic of Kenya In the High Court at Machakos Succession Cause 1040 of 2012 EN Maina, J May 28, 2026 IN THE MATTER OF ESTATE OF TITUS NDUTA NGWILI (DECEASED) Between Katumbi Muange Nthuli Petitioner and Priscilla Tuta Respondent Ruling 1.The Petitioner/Applicant has two applications for ruling. First is the Notice of Motion dated 28th July 2025 and the other the Notice of Motion dated 1st September 2025. In the former application she seeks enlargement of time to appeal the judgment delivered herein on 9th May 2025. In the latter application she seeks to stay execution of the judgment herein pending hearing and determination of the intended appeal. 2.The applications are premised on grounds, inter alia, that the court took long to publish/upload the judgment on the e-platform and by the time it did, the time for filing the appeal had lapsed; that the delay was occasioned by indolence on the part of their advocate who failed to communicate the delivery of the judgment or advise on the timelines for lodging an appeal; that the delay is excusable on account of the mistake of the former advocate which should not be visited upon the clients; that the appeal raises serious questions of law and fact and stands high chances of success and that the Respondent shall not suffer any prejudice should the application be allowed. 3.In regard to the application for stay of execution, Counsel for the Appellant/Applicant submitted that she has met the conditions in Order 42 Rule 6(2) of the Civil Procedure Rules in that should the Appellant/Applicant be evicted it would disturb the status quo permanently and render the intended appeal an academic exercise. Counsel also argued that the application was filed immediately they received instructions from the Appellant/Applicant. 4.For the Respondent it was submitted that the Applicant has not demonstrated good and sufficient cause to warrant leave to appeal out of time; that the Applicant has manifestly failed to meet the statutory threshold under Section 79 G of the Civil Procedure Act. That the reasons given for the delay are legally insufficient as it is trite that parties are expected to comply with procedural timelines regardless of Counsel’s errors or inattention as enunciated in the case of Ngugi v Waweru and another [2025] KEHC 3102 and the case of Simon v Oira [2025] KEHC 7211. Counsel asserted that courts do now draw distinction between isolated inadvertent mistakes and systemic failure to act within procedural timelines; that mere oversight or inattentiveness, without more, cannot constitute good and sufficient cause. 5.Counsel for the Respondent further argued that the existence of triable issues alone does not excuse failure to adhere to statutory timelines; that the delay in this case has unjustly prejudiced the Respondent who has awaited the conclusion of these proceedings for over ten years and that the law does not condone dilatory conduct under the guise of arguable appeals. Further, that as the Applicants (sic) have no equitable interest or legal title to the property their assertion that they risk to suffer irreparable loss is unsubstantiated and speculative. 6.Counsel has also taken issue with the Applicant’s failure to offer or tender security and described that as being fatal to the application. Counsel further states that the Applicant’s claim of potential eviction and disruption of status quo cannot justify a stay as he has no enforceable rights in the subject property. Counsel contends that any order granting a stay would serve only to frustrate the judgment and further delay the lawful enjoyment of the estate by the beneficiaries. Counsel urges this court to dismiss both applications with costs to the Respondent. 7.Issues for determinationi.Whether this court can enlarge the time for filing an appeal of its decision to the Court of Appeal and if so whether the Applicant has satisfied the requirement as would warrant this court to enlarge time as prayed.ii.Whether this court can order a stay of execution of the judgment herein pending filing of the intended appeal. Analysis and determination 8.In civil cases from the decrees of the High Court are provided for in Section 66 of the Civil Procedure Act which states:-“Except where otherwise expressly provided in this Act, and subject to such provision as to the furnishing of security as may be prescribed, an appeal shall lie from the decrees or any part of decrees and from the orders of the High Court to the Court of Appeal.” 9.It is instructive that neither the Civil Procedure Act nor the Civil Procedure Rules provide for the time for filing such appeal or for enlargement of time. Section 79 G of the Act relates specifically to appeals from subordinates courts to the High Court and is not therefore applicable to these proceedings. Moreover, this is a succession cause whose procedure is largely governed by the Probate and Administration Rules except where the import of the Civil Procedure Rules to such causes is provided for – see Rule 63 (1) of the Probate and Administration Rules which states:“63.Application of Civil Procedure Rules and High Court (Practice and Procedure) Rules (1) Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.” 10.The rules that govern appeals in the Civil Procedure Rules are clearly not part of those that have been imported to the Probate and Administration Rules by dint of Rule 63(1). There is therefore no express provisions for enlargement of time and indeed no provision at all for appeals from the decrees or orders of the High Court to the Court of Appeal. 11.Until recently the question whether appeals to the Court of Appeal from the High Court were automatic or required the leave of the High Court was a grey area. That question was however settled by the recent decision of the Supreme Court in the case of Wandi v Muchira (Suing as the Administrator Ad Litem of Jane Muthoni Muchira) (Petition E029 of 2024) [2026] KESC 29 (KLR) (Civ) (31 March 2026) (Judgment) where the court held:“(59)Accordingly, and in the absence of any express statutory limitation, we hold that a decision of the High Court rendered in the exercise of its original jurisdiction in a succession matter is appealable to the Court of Appeal as of right. Any contrary position would be inconsistent with the Constitution’s transformative vision of a fair, accessible, and non-discriminatory system of justice.” 12.The Applicant herein therefore has an automatic right of appeal against the decree of this court to the Court of Appeal. He did not appeal in time and therefore has applied to this court to enlarge the time for him to do so. His Advocate has invoked Rule 7 of the Court of Appeal Rules in invoking the jurisdiction of this court to grant the leave. Unfortunately the applicable rules are currently the Court of Appeal Rules of 2022. The 2022 Rules repealed the old Rule 7 which gave this court jurisdiction to enlarge such period and the applicable rule is now Rule 4. This rule now vests the power to extend time for doing any act, solely in that Court of Appeal. The applications are heard by one judge of that court. The Rule states:“[Rule 4] Extension of timeThe Court may, on such terms as may be 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 the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.”(See Rule 2 (2) which defines court as the Court of Appeal). 13.The upshot is that this court does not have the jurisdiction to grant an order for enlargement of time for filing an appeal from this court to the Court of Appeal and hence that prayer is dismissed. Issue ii – Whether this court can order a stay of execution of the decree of this court and whether the Applicant satisfied the conditions for exercise of this court’s discretion in his favour. 14.As earlier stated Order 42 of the Civil Procedure Rules is precluded from these proceedings by dint of Section 63(1) of the Probate and Administration Rules. The applicable provisions in this instance are therefore, Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. Section 47 gives the court jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decrees and make such orders as expedient while Rule 73 of the Probate & Administration Rules gives this court inherent powers to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. 15.It is trite that an application for stay of execution can be made either in the trial court or in the Court of Appeal. It is my finding therefore that the same position applies in succession causes. Rule 5 of the Court of Appeal Rules provides that orders for stay of execution shall be granted by that court. However, Rule 43 of the Court of Appeal Rules also seems to suggest that such an application can be made in the High Court in the first instance. Bearing the above in mind, I am satisfied that an order for stay of execution of the decree of this court would be necessary so as to preserve the estate the subject of the order sought to be appealed. In the premises this court shall grant a stay of execution for a period of forty five (45) days to enable the Applicant to seek extension of time to lodge an appeal out of time and also an order for stay of execution from the Court of Appeal pending the hearing and determination of the intended appeal. Disposition 16.The upshot is that the prayer for extension of time to file an appeal out of time is dismissed. However, there shall be a stay of execution for 45 days from the date of this ruling so as to enable the Applicant time to seek extension of time in the Court of Appeal. 17.This being a family matter parties shall bear their own costs for both applications.It is so ordered. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS ON THIS 28TH DAY OF MAY, 2026.E. N. MAINAJUDGEIn the presence of:Ms Okemwa for RespondentMr. Kithure for ApplicantMary - Court Assistant/Interpreter