https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1007

Kariuki v Gachie & 2 others (Civil Application E006 of 2026) [2026] KECA 1007 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1007 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Application E006 of 2026 M Ngugi, JA May 29, 2026 Between Simon Thogo Kariuki Applicant and Patrick Mathenge Gachie 1st Respondent Humphrey Mwangi Gachie 2nd Respondent Simon Wamahiu Gachie 3rd Respondent (An application for extension of time to lodge and serve a Notice of Appeal out of time from the ruling of the High Court of Kenya at Nyeri (M. Muya, J.) delivered on 28th May 2025 in Nyeri High Court Succession Cause No. 189 of 1999) Ruling 1.In the application dated 30th January 2026, the applicant seeks leave to lodge and serve a notice of appeal out of time against the ruling of the High Court at Nyeri (M. Muya, J.) dated 28th May 2025 in Nyeri High Court Succession Cause No. 189 of 1999. The application is brought under rule 41 and 44 of the Court of Appeal Rules 2022. The application is based on grounds on its face and on the supporting affidavit sworn by the applicant on 30th January 2026. 2.The applicant avers that the High Court heard and dismissed his summons for revocation or annulment of grant on 28th May 2025, but that his counsel on record did not inform him of the decision. He only learnt of the ruling on 23rd September 2025 when he visited the court registry and obtained a copy of the decision. 3.It is his case that his counsel let him down in his professional duty; that he is not conversant with legal or court processes as a lay person; and that upon obtaining legal advice, he learnt that he ought to have lodged a notice of appeal within fourteen days of the impugned decision. He states that he continued following up the matter with counsel who advised him that he was awaiting a delivery notice from the court online, before the applicant personally visited the registry and discovered that the ruling had already been delivered. 4.The applicant contends that he has an arguable appeal and that the intended appeal concerns land parcel numbers Aguthi/Gatitu/579, 687 and 1151, which he states he inherited from his grandfather. He further avers that the respondents will not suffer prejudice if the application is allowed. He has annexed various documents, including copies of green cards, a ‘clean letter’ dated 20th July 2011, a coffee share certificate, electricity bill and water bill to support his claim of entitlement to the land parcels. 5.The application is opposed by a replying affidavit sworn on 11th February 2026 by the 1st respondent, Patrick Mathenge Gachie, on his own behalf and on behalf of the other respondents. The respondents aver that the application is similar to another application filed by the applicant in Nyeri High Court Succession Cause No. 189 of 1999 which is scheduled for hearing on 26th February 2026; that the present application is misconceived, incompetent and an abuse of the process of the Court; and that from the filing of the succession cause in 1990, the proceedings had been opposed by the applicant’s mother and brother. 6.The respondents further contend that it is not true that the applicant came to know of the ruling recently; that the applicant and his family had long claimed that the respondents’ father held the land in trust for their father, but that the claim was dismissed on 25th January 2010 and no appeal was lodged. They aver that the intended appeal has no chances of success; that the ruling sought to be appealed from was delivered more than eight months before the present application; that the applicant has been filing applications in the High Court; and that he ought not to blame his advocate for his own lack of vigilance. 7.The respondents further aver that the estate has already been distributed following transmission registered on 7th June 2011; that the applicant’s brother, Johnson Gachii Kariuki, is a beneficiary; that the applicant is introducing new evidence which ought to have been produced in the High Court; and that the application is intended merely to keep the claim alive because the applicant is utilizing the land and does not wish to vacate. 8.I have considered the application, the affidavits in support and opposition thereto, and the submissions of the parties. Extension of time is not a right of a party, but an equitable remedy that is available to a deserving party at the discretion of the Court. Rule 4 of the Rules of this Court grants the Court the discretion to extend time on the basis of well settled factors. These factors, enunciated in the case of Leo Leo Sila Mutiso v. Rose Hellen Wangari Mwangi (1999) 2 EA 231, are the length of the delay, the reason for the delay, (possibly) the chances of success, and the degree of prejudice to the respondent. 9.The ruling that the applicant seeks to appeal from was delivered on 28th May 2025. The present application was filed on 30th January 2026. The delay is therefore approximately eight months from the date of the impugned ruling, and about four months from 23rd September 2025, the date the applicant states he became aware of the ruling. The applicant explains the delay by contending that his advocate failed to notify him of the delivery of the ruling; and that he only discovered the position upon personally visiting the court registry. 10.The respondents dispute the explanation and contend that the applicant had remained active in the proceedings and had filed other applications in the High Court. 11.While mistakes of counsel may, in appropriate circumstances, constitute a sufficient basis for extension of time, a litigant also bears a duty to remain vigilant in the prosecution of his matter. In the present case, the applicant attributes the entire eight-month delay to counsel, yet by his own averment, he became aware of the ruling on 23rd September 2025 but did not move this Court until 30th January 2026. He could, perhaps, blame the delay from 25th May 2025 to 23rd September 2025 on his advocates for failing to notify him about the ruling. He has not, however, explained the period between 23rd September 2025 and 27th January 2026. 12.I have also considered whether the intended appeal is arguable. The applicant annexed the impugned ruling in which the High Court dismissed the summons for revocation or annulment of grant after finding, inter alia, that the issue of trust relied upon by the applicant had previously been litigated and determined and was therefore res judicata. The High Court further found that the applicant had not demonstrated that the succession proceedings were conducted improperly within the meaning of section 76 of the Law of Succession Act. 13.At this stage, I am not required to make definitive findings on the merits of the intended appeal. However, considering the nature of the dispute, the age of the succession proceedings, and the findings already made by the High Court regarding previous litigation over the same subject matter, I am not persuaded that the intended appeal discloses sufficient grounds to justify the exercise of discretion in favour of the applicant. 14.A further consideration under rule 4 is the prejudice likely to be suffered by the respondents should the orders sought be granted. They have averred that the estate the subject of the succession proceedings has already been distributed and transmission effected as far back as 7th June 2011. I take the view that re-opening the matter after such prolonged delay would occasion prejudice to beneficiaries who have long treated the succession process as concluded. 15.Taking all the above matters into consideration, I am not persuaded that the interests of justice lie in granting the orders sought by the applicant. I therefore decline to issue the orders sought in the application dated 30th January 2026, and it is hereby dismissed with costs to the respondents. AND DELIVERED AT NYERI THIS 29TH DAY OF MAY, 2026.MUMBI NGUGI............................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR