https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8219

In re Estate Wambugu alias Gachie Wambugu (Deceased) (Succession Cause 189 of 1999) [2026] KEHC 8219 (KLR) (2 June 2026) (Ruling) Neutral citation: [2026] KEHC 8219 (KLR) Republic of Kenya In the High Court at Nyeri Succession Cause 189 of 1999 DKN Magare, J June 2, 2026 IN THE MATTER OF ESTATE OF GACHII WAMBUGU alias GACHIE WAMBUGU (DECEASED) Between Simon Thogo Kariuki Applicant and Patrick Mathege Gachie 1st Respondent Humprey Mwangi Gachie 2nd Respondent Simon Wamahiu Gachie 3rd Respondent Ruling 1.The applicant filed an application dated 26.09.2025 seeking leave to appeal from the decision of Muya J, given on 28.05.2025. The ruling was to be delivered on notice and was delivered in the absence of all the parties. The applicant indicated that he learnt on a visit to his advocate on 25.09.2025. 2.The application was opposed vide an affidavit sworn by the first respondent Patrick Mathege Gachie dated 13.10.2025. The respondents maintained that the ruling was delivered in absence of both parties and there is no explanation for undue delay. 3.The applicant filed submissions dated 15.04.2025 and submitted that he came to learn of the outcome on 25.09.2025 when he perused the court file. He was not informed of the outcome. He blamed his counsel. He lamented that he was not informed. 4.The respondent filed submissions dated 22.04.2026. They submitted that the delay in bringing the present application is plainly inordinate. The impugned ruling was delivered on 28.05.2025, yet the present application was not filed until 26.09.2025, a period of approximately four months. The law requires that a Notice of Appeal be lodged within the prescribed period, and no plausible or sufficient explanation has been tendered to justify such prolonged delay. 5.They submitted that the Applicant attributed the delay to the alleged mistake of counsel in failing to inform him of the delivery of the ruling. However, the record clearly shows that both the Applicant and his counsel were absent when the ruling date was taken and equally absent on the date of delivery of the ruling. This demonstrates a clear lack of diligence on the part of both the litigant and his advocate. Reliance was placed on the case of Rajesh Rughani v Fifty Investments Limited & Another [2005] KEHC 615 (KLR) where the Court rejected the attempt by a litigant to rely solely on the inaction of counsel as an excuse for delay. 6.They reiterated that the foregoing position reinforces the principle that a litigant bears a continuing duty to take reasonable steps to follow up his case. In the present matter, the Applicant has merely alleged failure by counsel without demonstrating any meaningful effort on his part to monitor the progress of his application or the outcome of the ruling. The alleged mistake is therefore not sufficient to warrant the exercise of this Honourable Court’s discretion in his favour. 7.They submitted that his assertion that he “kept visiting counsel” is vague, unparticularised, and unsupported by any evidence, and does not adequately explain or account for the prolonged period of inaction. The principles governing extension of time were authoritatively set out in Fakir Mohamed vs. Joseph Mugambi & 2 others [2006] eKLR, Waki, J.A stated that:“The exercise of this Court’s discretion under Rule 4… is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the effect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance-are all relevant but not exhaustive factors… 8.They submitted that the Applicant failed to satisfy the threshold for the exercise of this Court’s discretion. The delay of approximately four months is inordinate and has not been satisfactorily explained. The reason advanced, being alleged mistake of counsel, is unsupported and in any event does not absolve the Applicant from the duty to act diligently in pursuing his matter. They prayed that the Applicant’s application dated 26th September 2025 be dismissed with costs. Analysis 9.The record indicates that the impugned ruling was set on 2.11.2023 to be delivered on notice. There does not appear on the record, evidence that both parties were informed of the ruling. Therefore, I agree with the applicant that they could not have known that the ruling was to be delivered on the said date. The respondent was not candid in explaining whether they also got informed of the ruling. It is not lost that they extracted the order appealed from long after this application was filed, that is on 5.11.2025. 10.The applicant relied on mistake of counsel; the truth is that the court bears the highest blame for the delay. The ruling was delivered in circumstances where it is not clear how parties were served. There is no affidavit of service. In the case of Munga & 92 others v Patel & 4 others [2026] KEELC 2557 (KLR), L. L. NAIKUNI, J held as follows:“The Plaintiffs/Respondents’ explanation, while raising serious concerns about professional misconduct, does not absolve them of responsibility. Kenyan courts have consistently held that of Kenya Limited & another (Civil Suit 23 of 2008) [2023] KEELC 21178 (KLR) (1 November 2023) (Ruling)”counsel. See “Rinya Hospital Limited – Versus - Cooperative Bank litigants cannot indefinitely hide behind the mistakes ofCOUNSEL.See "Rinya Hospital Limited versus Cooperative Bank of Kenya & another ( Civil suit 23 of 2008) [2023] KEELC 211(KLR) (November 2023) (Ruling)" 11.However, mistakes will always continue being made. In this matter, the mistakes were shared by all parties and the court. The period of delay was only three months. The applicant acted immediately on learning of the ruling. In the case of Philip Keipto Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR), the court of appeal [Platt, Gachuhi & Apallo JJA], as per Apaloo JA stated as follows:QUOTE{startQuote “}I think a distinguished equity judge has said:“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits.”I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court, as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline. In this case, the appellants offered to pay the costs. The respondent will not agree. 12.The mistakes herein were genuine and acceptable in view of the errors by the court. The test for extension of time was settled by the Supreme Court in the case of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), where the court set the principles as follows:The court ought to consider the following principles in exercising the discretion to extend time for filing an appeal:a.Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;b.A party who sought extension of time had the burden of laying a basis for it to the satisfaction of the court;c.Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case to case basis;d.Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the court;e.Whether there would be any prejudice suffered by the respondents if the extension was granted;f.Whether the application had been brought without undue delay; and;g.Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time. 13.Based on the above principles, the court notes that the applicant has met the threshold for grant of the orders sought. This leaves the issue of costs. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), as follows:18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation22.Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 14.However, in this matter the order that commends itself is that each party should bear its own costs. Determination 15.In the circumstances, I make the following orders:a.Leave is granted to the applicant to file an appeal from the decision made on 28.05.2025.b.The notice of appeal be filed within 14 days from today.c.Each party to bear its own costs. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 2ND DAY OF JUNE, 2026. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Mr. Gori for the ApplicantMrs. Maina for the RespondentCourt Assistant – MartinM. D. KIZITO, J.