Meitamei v Letoluo & 2 others (Civil Application E016 of 2026) [2026] KECA 1182 (KLR) (19 June 2026) (Ruling)

Meitamei v Letoluo & 2 others (Civil Application E016 of 2026) [2026] KECA 1182 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KECA 1182 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Application E016 of 2026 AI Hassan, JA June 19, 2026 Between Purity Somoine Meitamei Applicant and Salome Naanyu Leshan Letoluo 1st Respondent Joy Namunyak Leshan 2nd Respondent Leshan Kuntai (Sued As The Administrators Of The Estate Of The Late Nick Ole Letoluo) 3rd Respondent (An application for extension of time to lodge and serve the notice of appeal and record of appeal out of time in the intended appeal from the judgment of the High Court at Narok (Charles Kariuki, J) delivered on 18th July 2025 in Succession Cause Case No. E024 of 2021) Ruling 1.Before me is a Notice of Motion dated 3rd February 2026, brought under the Provisions of Section 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 42 Rule 6(1), 2, 3 and Order 50 Rule 6 of the Civil Procedure Rules and Under Section 79G of the Civil Procedures Act and Section 7 of the Appellate Jurisdiction Act and all other enabling provisions of Law. 2.Although the motion has been presented under the provisions cited above, its substance is that of an application under Rule 4 of the Court of Appeal Rules. The applicant seeks an order extending time to lodge and serve the notice of appeal and the record of appeal out of time, arising from the judgment of the High Court at Narok in Succession Cause No. E024 of 2021 delivered on 18th July 2025. 3.The grounds in support of the application are borne on the face thereof and in the affidavit in support sworn by the applicant, on 3rd February 2026. 4.In summary, the applicant’s averments and submissions are that she was a protestor in the succession cause No. E024/2021 on the grounds that she was a wife of the deceased, Nick Ole Letoluo. The respondents opposed the application, citing that she was not a wife of the deceased and her children were not the biological children of the deceased, nor did he assume parental responsibilities during his lifetime. In its judgment delivered on 18th July 2025, the High Court found that the applicant was not the deceased's wife and her two children were not dependants of the deceased. Following that determination, the respondents lodged an application dated 21st July 2025 seeking, among other reliefs, her eviction from the matrimonial home. This prompted the filing of several applications aimed at securing stay and protection against eviction, which occasioned the delay in filing the instant application. Although a notice of appeal was filed on 24th July 2025, it was subsequently withdrawn owing to procedural technicalities. 5.The applicant contends that unless the orders sought are granted, the applicant stands to suffer irreparable damages that cannot be compensated by way of damages. 6.It is further contended that the appeal raises arguable and weighty issues of law and fact as demonstrated in the draft memorandum of appeal. 7.The 1st and 2nd respondents oppose the application vide their replying affidavit deponed on 18th March 2026, they depone inter alia that; previously, similar applications had been filed before this honourable court and which applications were withdrawn, the applicant has filed the present application and has proceeded to file a notice of appeal and memorandum of appeal even though leave has not been granted to file the said documents, that filing a notice of appeal and memorandum of appeal before leave is granted is procedurally irregular, incompetent and amounts to an abuse of the court process, that after delivery of judgment, the applicant did not immediately seek leave to appeal but instead sought 60 days to vacate the suit premises, that this indicates that the applicant did not intend to appeal against the judgment and was satisfied with the judgment. 8.It is further averred by the 1st and 2nd respondents that the applicant has not provided a credible or sufficient explanation for failing to file the application for leave to appeal within the prescribed time. 9.That the previous applications filed by the applicant show a pattern of technical defects and premature filings that demonstrate a lack of bona fide reason for delay. 10.Further, the 1st and 2nd respondents contend that the applicant has not demonstrated any prima facie case with a likelihood of success on appeal. The trial Court’s judgment found that the applicant had not established a lawful marriage with the deceased and that her two daughters did not qualify as dependants of the deceased. 11.The 3rd respondent has equally opposed the application vide a replying affidavit deponed on 27th January 2026. The 3rd respondent has also filed submissions dated 10th March 2026. The 3rd respondent’s averments and submissions are that there is no automatic right of appeal from the High Court when exercising original jurisdiction under the Law of Succession Act. That there has been no application for leave or for extension of time to seek such leave. That consequently, no appeal exists, and the instant application is incompetent and without legal foundation, there being no competent appeal before the court. 12.The 3rd respondent further contends that, without prejudice to the above, the delay in filing the instant application is inordinate and wholly unexplained. That the applicant participated in the succession proceedings and was always represented by counsel, and was therefore fully seized of the matter and well aware of the procedural requirements governing the filing of an appeal. 13.In conclusion, the respondents urge this court to dismiss the applicant’s application with costs to them. 14.I must, at first instance, deal with the fundamental issue of jurisdiction raised by the 3rd respondent. It is trite that a Court must down its tools as soon as it holds the opinion that it has no jurisdiction, as was held in the renowned case of Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] eKLR. 15.In Wandi vs. Muchira (Suing as the Administrator Ad Litem of Jane Muthoni Muchira) [2026] KESC 29 (KLR), the Supreme Court rendered a decision on the issue and held as follows:“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.’’ 16.Accordingly, I am properly seized of jurisdiction to entertain and determine the application. 17.I have considered the application, grounds in support thereof, the rival submissions, as well as the law. Rule 4 of the Court of Appeal Rules does not provide for factors that the court ought to consider in an application for extension of time, but courts have devised appropriate principles to be applied in achieving a ‘just’ decision in the circumstances of each case. The case of Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi [1999], which is the locus classicus, laid down the parameters as follows:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.”[Emphasis supplied.] 18.The Supreme Court has, in Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 others, SC Application No. 16 of 2014; [2014] eKLR, further distilled the principles which courts ought to consider when determining applications for extension of time. These principles are: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 an 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-by-case basis.iv.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court.v.Whether there will be any prejudice suffered by the respondents if the extension is granted.vi.Whether the application has been brought without undue delay; andvii.Whether, in certain cases, like election petitions, public interest should be a consideration for extending time.” 19.These principles guide my determination herein. As regards the length of delay, in Sentrim Kenya Limited vs. CFC Stanbic Bank Limited [2021] KECA 648 (KLR), this Court stated that there is no maximum or minimum period of delay set out under the law. However, the reason or reasons for the delay must be reasonable and plausible. In Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKLR, this Court stated:“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favorably exercisable.” 20.In the instant case and as regards the length of the delay, the impugned judgment was delivered on 18th July 2025. The instant application is dated 3rd February 2026. The delay is about 6 months and 16 days. The litmus test for inordinate delay is that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable. In other words, in determining whether or not the delay is inordinate, it is not a matter of arithmetic. All the surrounding circumstances, including the reason for the delay, must be considered by the Court. A six-month delay, without a satisfactory explanation, would obviously amount to an inordinate delay. Accordingly, what calls for more scrutiny is the reasons advanced for the delay. 21.A plausible and satisfactory explanation is what unlocks the court’s discretion. The applicant attributes the delay to the multiple applications seeking stay and protection from eviction from her home after the delivery of the judgment. The applicant contends that a notice of appeal was filed on 24th July 2025, 6 days after delivery of judgment, but the same was withdrawn owing to procedural technicalities. 22.I am persuaded that the reasons advanced are not only plausible but also satisfactory. The eviction proceedings following the delivery of the impugned judgment presented an immediate threat to the applicant’s residence. It is therefore understandable that she immediately sought to secure protection from eviction, which was a matter of urgency and survival. In addition, the fact that a notice of appeal was lodged within six days of the judgment demonstrates an intention to pursue the appellate process without delay. Considering the circumstances of this case, I am inclined to exercise my discretion in favour of the applicant. 23.As to the arguability or otherwise of the intended appeal, it would not be in my place to determine the same sitting as a Single Judge, and I will therefore not delve further into this issue. 24.Finally, on the issue of prejudice, I am not persuaded that the respondents stand to suffer any prejudice should the orders sought be granted. The grant of extension merely affords the applicant an opportunity to ventilate her appeal, while the respondents will equally have the full opportunity to oppose it on merit. In any event, it has often been observed that there is one universal remedy which cures most ills in litigation, namely, costs. Rarely, if ever, does a party’s mistake confer upon the other side such an advantage that it cannot be redressed by the application of this healing measure. (See Waljee’s (Uganda) Ltd vs. Ramji Punjabhai Bugerere Tea Estates Ltd [1971] EA 188. 25.The totality of my findings, therefore, is that the applicant has demonstrated and satisfied the existence of the principles for consideration in the exercise of my unfettered discretion pursuant to Rule 4 of this Court to extend the time within which to file the intended appeal. 26.Accordingly, the applicant’s motion dated 3rd February 2026 is merited, and the same is hereby allowed. The applicant is to file and serve the notice of appeal and the memorandum of appeal within seven (7) days from the date of this ruling, while the record of appeal be filed and served within 30 days from the date of service of the notice of appeal. Costs of the application to abide by the outcome of the appeal. DATED AND DELIVERED AT NAKURU THIS 19TH DAY OF JUNE, 2026.AHMED ISSACK………….……..…………… JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR