https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1446

Ndungu v Kihuga & 38 others (Civil Application E053 of 2026) [2026] KECA 1446 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KECA 1446 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Application E053 of 2026 MN Nduma, JA July 17, 2026 Between Stpehen Muthuma Ndungu Applicant and Vincent Njogu Kihuga 1st Respondent Peter Mucheru Kihuga 2nd Respondent Anthony Kimani Kihuga 3rd Respondent Donald Kamuro Kihuga 4th Respondent Eunice Wambui Ndungu 5th Respondent Peter Kibira Kihuga 6th Respondent Elizabeth Wanjiku Karungi 7th Respondent Michael Kinyanjui Kihuga 8th Respondent Eliud Njogu Kihuga 9th Respondent Job Mbugua Ndungu 10th Respondent Elizabeth Jepchumba Chesire 11th Respondent Victoria Gathoni Gitau 12th Respondent Francis Ndungu Kihuga 13th Respondent Mary Wambui Gichure 14th Respondent John Kimani kihuga 15th Respondent Samuel Kihuga Thairu 16th Respondent Henry Thairu Kibiku 17th Respondent Phylis Njoki Thairu 18th Respondent Robert Kihuga Bate 19th Respondent Mary Kihuga Ndungu 20th Respondent Esther Njoki Oyaro 21st Respondent Lucy Wangeci Muturi 22nd Respondent Sarah Wambui Gathere 23rd Respondent Jackline Jemima Gathanja Kihuga 24th Respondent David Gathondu Kihuga 25th Respondent Jane Njeri 26th Respondent Dennis Kihuga Muchema 27th Respondent Margaret Nyambura Kihuga 28th Respondent Margaret Nyambura Kihuga 29th Respondent Martin Kimani Bate 30th Respondent Irene Nyokabi Chege 31st Respondent Susan Muthoni Kihuga 32nd Respondent James Njogu Kihuga 33rd Respondent Mary Edith Thiru 34th Respondent Serah Wamboi Kihuga 35th Respondent Dorcas Nyambuera Kihiga 36th Respondent Sarah Wamboi Kihuga 37th Respondent Esther Wanjiku Kihuga 38th Respondent Phyllis Njoki Ndung'u 39th Respondent (Being an application for extension of time to file an Appeal out of time from the decision of Eldoret High Court (R. Nyakundi, J.) delivered on 27th February 2026 in HC Succession Cause No. 34 of 2007) Ruling 1.The applicant moved this court by a motion dated 7th May 2026 seeking leave to appeal out of time against the decision made in Eldoret High Court Succession Cause No. 34 of 2007 in the matter of the Estate of James Samuel Kihuga Chege and Tabitha Waitherero Kihuga on 27th February 2026. The applicant also sought directions to be allowed to file a notice of appeal and record of appeal outside the requisite time. 2.The application is brought under section 4 of the Appellate Jurisdiction Act and rules 41 and 49 of the Court of Appeal Rules, 2022. The application is premised on grounds set out on the face of the application and buttressed in the supporting affidavit of Stephen Muthuma Ndungu, the applicant, both dated 7th May 2026. Similar grounds are restated in the written submissions dated 26th June 2026. 3.The applicant asserts that he is one of the beneficiaries of the estate of James Kihuga previously filed under Eldoret Succession Cause No. 34 of 2007. It is his contention that the cause was later consolidated with Eldoret Succession Cause No. 85 of 2007 that related to the estate of Tabitha Waitherero Kihuga. He argues that the trial court had initially issued a decision on mode of distribution on 11th October 2024 which concluded the matter. However, he later learnt from the 1st respondent, Vincent Njogu Kihuga on 5th May 2026, that the trial court through a decision on 27th February 2026, had without an application for review redistributed the estate well after the time within which to file a notice of appeal had lapsed. 4.On that premise, the applicant asserts he has an arguable appeal since the trial court was functus officio and the matter res judicata at the time of issuing the conflicting decision on mode of distribution. He also points out that, there are two decisions on mode of distribution by the same court without one being either varied, set aside or vacated. The applicant also points out that since knowing of the impugned decision on 5th May 2026, he has approached the court with dispatch by filing this application on 7th May 2026 without any inordinate delay. In his application, he has also attached a proposed memorandum of appeal. The applicant contends that the respondents will not be prejudiced if time is extended. 5.The application is not opposed as no response has been filed by the respondents. The applicant has attached copy of hearing notice sent on 19th June 2026 where the parties were given directions on filing and service of their submissions. The applicant also attached proof of service of the application on the respondents through affidavit of service dated 25th June 2026 deposing that the respondents’ Advocates were served through electronic mail. 6.I have considered the application, affidavit in support and the written submissions filed by the applicant. The issue for determination is whether to grant leave for the applicant to file his appeal out of time. 7.The grant of extension of time is a discretion of the court exercised judiciously under rule 4 of the Courts of Appeal Rules, 2022 as was stated in the case of Leo Sila Mutiso v Rose Wangari Mwangi [1999] 2 EA 231 that the guiding principles in exercise of that discretion include the length of delay, the reason for the delay, chances of success of intended appeal, and the degree of prejudice to the respondent. This position is restated in Paul Wanjohi Mathenge vs. Duncan Gichane Mathenge [2013] KECA 199 (KLR). 8.Similarly, the Supreme Court in Nicholas Kiptoo Arap Korir vs. Independent Electoral and Boundaries Commission & 7 others [2014] eKLR pronounced itself on principles to consider as follows;“In exercising discretion to extend time for filing an appeal, the court ought to consider extension of time not as a right of a party but as an equitable remedy only available to a deserving party, at the discretion of the court. In doing so, the court ought to consider the; period of delay, reasons for the delay and the potential prejudice to the respondent.” 9.Whereas the minimum or maximum period of delay is not set out in law, it has been advanced, rightly so, that the delay should be satisfactorily explained. In addition to that, the reasons ought to be valid and clear thereby laying the basis for exercise of favorable discretion. See Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] KECA 701 (KLR). 10.The court is satisfied with the reasons proffered by the applicant for the failure to file the notice of appeal within 14 days and also finds that the application is not visited with inordinate delay having been filed within two months and seven days from the date of the impugned decision. He has also pointed out that he lodged his application 48 hours after learning of the decision from the 1st respondent. 11.In view of the above considerations, I find that the applicant has advanced plausible reasons for the delay and the same was not inordinate. Additionally, in the absence of opposition to the application, it appears no prejudice will be visited upon the respondents which cannot be remedied by an award of costs. Further to that, the applicant has also attached a proposed memorandum of appeal raising arguable grounds of appeal. 12.Accordingly, I find that the application dated 7th May 2026 has merit and it is hereby allowed. The applicant shall file and serve the appeal within prescribed time lines from the date of this ruling. Costs of this application shall abide the outcome of the appeal. DATED AND DELIVERED AT ELDORET THIS 17TH DAY OF JULY, 2026.NDUMA NDERI................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR