https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11453

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **HCCCMISC APPLICATION NO. E007 OF 2026** **TITUS MURIUKI GIOKO** **SIMON MUGAMBI GIOKO** **FAITH WAMARWA MUGO...............................................................................................................APPLICANTS** **VERSUS** **JOYCE WAGATWE WACHIRA** **LUCIA WANJIKU MUGERA....................................................................RESPONDENTS** **RULING** 1. This is a ruling on an application for leave to file appeal out of time dated 18/1/2026 and expressed to be brought under Sections 79G and 95 of the Civil Procedure Act, Order 50 Rule 6 of the Civil Procedure Rules, seeking the following specific reliefs: *“1. That this application be certified as urgent and the same be heard ex-parte in the Ist instance.* *2. That this honourable court be pleased to issue an order for preservation of the current status quo obtaining over land parcel number Mutira/Kirunda/160 to the effect that the applicants are in possession thereof pending the hearing and determination of this application.* *3. That this honourable court be pleased to issue an order for preservation of the current status quo obtaining over land parcel number MutiralKil'l1ndaJl60 to the effect that the applicants are in possession thereof pending the hearing and determination of the intended appeal.* *4. That this honourable court be pleased to grant the applicants herein leave to file their appeal out of time against the ruling, judgment and decree delivered in Kerugoya Magistrate's Court Succession cause No. 30 of 2011.* *5. That the costs of this application be in the cause.”* 1. The grounds of the application were set out in the application as follows: *“1. That when succession cause number 30 of 2011 was in court on the 14th day of July 2023, the lower court directed that the ruling therein would be delivered on notice.* *2. That the applicants herein were never served with any such notice.* *3. That upon following up \\ ith their ad, ocuic on record then, they were advised to continue waiting as the advocate had not been served with any such notice either.* *4. That the said advocate proceeded to advise the applicants that the delay in issuance of the said notice could have been occasioned by the transfer of the magistrate who was handling the matter.* *5. That there was a breakdown of communication between the applicants and their advocate who was on record then in the aid succession cause.* *6. That sometime in the month of November. 2025, the applicants were met by strangers on land parcel number Mutira/Kirunda/160, who alleged to have been registered as partial owners thereof under the aforesaid succes ion cause.* *7. That upon following lip at the court's registry, the applicants discovered that the said ruling* *had already been delivered and there were other developments in the said file without their knowledge or involvement.* *S. That the applicants now wish to appeal against the lower court's decisions which were given without their knowledge.* *9. That however, the statutory period for filing the intended appeal has since lapsed.* *10. That the delay in filing the appeal is inadvertent and not inordinate.* *11. That the intended appeal raises serious triable issues deserving consideration by this Honourable Court.* *12. That no prejudice will be suffered by the respondents if the orders sought are granted.”* 1. The application was supported by a supporting affidavit of the 1st applicant setting out the facts relied on as follows: *“I. That I am the 1st applicant herein with authority to swear on behalf of the 2nd and 3rd applicants herein thus competent to swear this affidavit.* *2. That when succession cause number 30 of2011 was in court on the 14th day of July, 2023, the lower court directed that the ruling therein would be delivered on notice.* *3. That we, the applicants herein, were never served with any such notice.* *4. That upon following up with our advocate on record then, we were advised to continue waiting as the advocate had not been served with any such notice either.* *5. That the said advocate proceeded to advise us that the delay in issuance of the said notice could have been occasioned by the transfer of the magistrate who was handling the matter.* *6. That there was a breakdown of communication between us, the applicants, and our advocate who was on record then in the said succession cause.* *7. That sometime in the month of November, 2025, we, the applicants, were met by strangers on land parcel number Mutira/Kirunda/160, who alleged to have been registered as partial owners thereof under the aforesaid succession cause.* *8. That upon following up at the court's registry, we discovered that the said ruling had already been delivered and there were other developments in the said file without our knowledge or involvement as a fresh certificate of confirmation of grant had already been issued (Annexed hereto and marked TMG-1 is a copy of the said ruling/grant.)* *9. That we now wish to appeal against the lower court's decisions which were given without our knowledge.* *10. That however, the statutory period for filing the intended appeal has since lapsed.* *11. That the delay in filing the intended appeal is inadvertent and not inordinate.* *12. That the intended appeal raises serious triable issues deserving consideration by this Honourablc Court (Annexed hereto and marked “TMG·2” is n copy of the draft memorandum of Appeal)* *13. That no prejudice will be suffered by the respondents if the order sought are granted.* *14. That it is in the interest of justice that leave be granted.”* 1. The 1st and 2nd Respondents filed a joint Replying Affidavit sworn on 25/2/2026 opposing the application on the ground that the applicants had been aware of the proceedings in the cases as follows: *“1. That we arc adults of sound mind and thus competent to swear this affidavit.* *2. That the Notice of Motion dated is" January. 2026 has been read to us and we have understood the same to be bad in law, full of falsehoods and non starter.* *3. That the estate of Titus Muriuki Gioko who is our father was clone and finalized vide the Certificate of Confirmation of Grant dated 23rd August 2023 (Annexed hereto and marked 'JWW1" is a copy the Certificate of Grant).* *4. That the land parcel number Mutira/Kirunda/160 was distributed as follows:* ***Mutira/Kirunda/160*** * *Faith Wamarwa Mugo 2.19 Acres* * *Titus Muriuki Gioko 2.19 Acres* * *Simon Mugambi Gioko 2.19 Acres* * *Joyce Wagatwe Wachira)* * *Lucia Wanjiku Mugera) jointly own 1.02 Acres* *5. That after the said confirmation of the grant we approached the applicants with the intention or registering the Certificate of Confirmation of Grant dated 23rd August 2023 at the Kirinyaga lands offices but the applicants refused to comply with our request.* *6. That subsequent thereto we filed Summons General dated 24th January 2025 seeking orders for the executive officer to sign Forms RL A50(7) and RLA42 (19) in respect to title number Mutira/Kirunda/160) (Annexed hereto and marked “JWW2" is a copy of the order dated 24th September, 2025).* *7. That the said documents were served upon thc applicants and a return of service was duly filed before the honourable court (Annexed hereto and marked "JWW3" is a copy of the affidavit of service dated 5th September, 2025 and a picture of the 1st applicant receiving the documents).* *8. That the Notice of Motion dared 18th January.2026 brought in had faith with the main purpose of delaying the registration of the Confirmation of Grant dated 23rd August 2023 and the orders issued 24th September 2025.* *9. That we pray that the Not ice d Motion dated 18th January 2026 be dismissed with costs.”* 1. In submissions before the Court on 18/6/2026, the applicant opted to rely on the application and the supporting affidavit filed in the matter without filing any written submissions. 2. The 1st Respondent urged that *“I am comfortable with the 1 acre with my sister and I do not seek anything more.”* The 2nd respondent did not attend Court at the hearing of the application. 3. The Court was concerned as to the allegation, which formed the basis of the application for extension of time to file appeal, that there was miscommunication between the trial Court and the parties where the Court allegedly reserved ruling and delivered the same without notice to the parties. The Court in exercise of its supervisory jurisdiction under article 165 (6) and (7) of the Constitution, consequently, called for the trial court, **Kerugoya CMC SUCC. CAUSE NO. 30 of 2011.** 4. It appears from the record of the trial court that the matter was before the court on **20/4/2023** when one Miss Mumbi for the Objectors appeared and informed the Court that the matter was for submissions, which they had not yet complied but would they could take a ruling date, and the Court set the mater for **Ruling on 26/5/2023.** 5. **There was no record of the delivery of the Ruling on 26/5/2023 or on any date thereafter but there is on the file a typed Judgment dated 23/8/2023 without any minute of proceedings of the Court on the said date of deliverey. Indeed the judgment itself indicates that it was delivered in the absence of the parties.** 6. The Judgment of the Court dated 23/8/2023 was as follows: *“****REPUBLIC OF KENYA*** ***IN THE CHIEF MAGISTRATE'S COURT AT KERUGOYA*** ***SUCCESSION CAUSE NO. 30 OF 2011*** ***IN THE MATTER OF THE ESTATE OF THE LATE GIOKO MUGO alias GIOKO*** *MUGO* ***GIOKO - DECEASED*** ***-AND-*** ***TITUS MURIUKI GIOKO .............................................PETITIONER*** ***-VERSUS*** ***JOYCE WAGATWE WACHIRA ...............................RESPONDENT*** ***JUDGMENT*** *This court has perused the file on 26/7/2022, the applicant counsel C.S Macharia indicated to the court that there are two applications dated 14th July, 2021 and one was filed in error. He sought to withdraw the same which the court did.* *On 11th November, 2022 the parties entered a consent, that the application for confirmation dated 17th May 2022 be heard as a protest and the summons dated 14th July 2021 remain the main (summons).* *A perusal of the court file, shows only one application dated 14th July 2021, which as indicated above was withdrawn on 22/7/2022. However, I shall consider the evidence on record and make a finding without reference to the said application.* *The issue for determination herein is distribution.* *The protestor's main contention is that she wants* ***1.02 acres*** *with her sister, which portion or parcel was meant for their mother. Whereas the brother Titus Muriuki Gioko contention is that the land be given to the 3 sons as those were their father's wishes. This court has considered the evidence and its clear that the daughters of the deceased were never given land.* *Whether the deceased said as such is neither here nor there. The law stipulate that all the children are equal and one cannot be discriminated upon on the basis of gender.* *As the protestor's proposal is that she and her sister to inherit 1.02 acres which used to belong to their mother. This court award them that 1.02 acres.* ***In*** *the premises, this court finds in favour of the protestor and distributes the estate in terms of paragraph 3 of the supporting affidavit ofJoyce Wagatwe Wachira dated 17th May, 2022 same that the 1.02 acres be shared* ***equally*** *between* ***Joyce Wagatwe Wachira and Lucia Wanjiku Mugera.*** *The court would have distributed the estate equally among the 5 but as the protestor as only asked for 1.02 acres it is in the interest of justice she be allocated that with her sister.* *There shall be no orders as costs as the parties are siblings.* *This is an old matter. Parties are encouraged to winding it up and close it.* ***Delivered in the absence of parties.*** ***E. WAMRO*** *PRINCIPALMAGIISTRATE* ***23/8/2023.****”* 1. A certificate of Confirmed Grant was subsequently issued in terms of the judgment. 2. The next minute on the record of the trial court is dated 11/3/2025 when the 1st respondent herein filed an application as follows: *“****11.03.2025*** ***In the Civil Registry*** ***Joyce Wagatwe Wachira*** *the 1st Respondent, Present in person.* *N/A for the Respondents.* *Summons General dated 24th January 2025 fixed for hearing on the 1st April 2025.* *Applicant to serve.”* 1. When the matter came up on 1/4/2025 before Wanyama, PM the new judicial officer after the transfer of Wambo PM, the record shows that the Court directed teh Respondents herein Joyce Wachira and Lucia who were present as follows: *“****Court:*** *The Summons to be served upon the respondents or their advocate within 7 days from today. An affidavit of service to be filed immediately thereafter. Response to be filed in 14 days. Hearing on 20/5/2025.”* 1. It appears from the Replying Affidavit of the Respondents herein that the applicants were served through their advocates on *Extension of time to file appeal* 1. This Court has under the Civil Procedure Rules authority to extend time as follows: *“****6. Power to enlarge time [Order 50, rule 6]*** *Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:* *Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”* 1. In the Supreme Court decision of ***Salat v Independent Electoral and Boundaries Commission & 7 others*** (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling)*,* the Court set out the principles for exercise of discretion under its Rule 53 of the Supreme Court Rules in similar terms as the High Court’s Civil Procedure Rules 50 Rule 6 and Rule 4 of the Court of Appeal Rules, to grant of extension of time, as follows: *“84. From the above caselaw, it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the court to exercise its discretion in favour of the applicant.* *85.This being the first case in which this court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a court should consider in exercise of such discretion:* ***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; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time. What is the position of the Court of Appeal application No Civil Application Sup No 5 of 2014(UR 2014) seeking certification? Is a letter to the Registrar sufficient to withdraw an application before the Court of Appeal?****”* In considering an application for extension of time to file appeal, this Court is guided by the Supreme Court’s decision in ***Salat*** case above. 1. The record of the Court vindicates the applicants’ position that there was a hiatus in the proceedings of the court created by the failure to deliver the ruling on 26/5/2023 as scheduled and delivering it on an unknown date in the absence of the parties and the record of the court showing no proceedings between the 20/4/2023 to 11/3/2025. 2. The Court has also considered whether there is an arguable appeal tobe presented before the appellate court upon grant of leave to appeal out of time as sought. The applicants have attached a draft Memorandum of Appeal in terms as follows: *“****DRAFT MEMORANDUM OF APPEAL*** *[The appellants herein, being dissatisfied with the whole of the Judgments, Rulings, and Orders of the Honourable E.O Wambo, Senior Principal Magistrate and Honourable Claire Wanyama, Principal Magistrate, sitting at the Magistrate's court in Kerugoya in Succession Cause No. 30 of2011, delivered on diverse dates, including 18th May, 2021, 23rd August, 2023 and 16th September, 2025, appeal to the High Court against the said decisions on the following grounds:* *GROUNDS OF APPEAL* *1. That the learned trial Magistrate erred in law and in fact by failing to properly consider the provisions of the Law of Succession Act, Cap 160, Laws of Kenya, in respect of the identification of beneficiaries and distribution of the ascertainable estate.* *2. That the learned trial Magistrates erred in law and in fact whereby they misdirected themselves in finding that the appellants were not entitled to 'the shares of the estate as per the deceased person's wishes, thereby arriving at an erroneous conclusion.* *3. That the learned trial Magistrates erred in law and in fact by failing to scrutinize and give effect to the evidence and arguments presented by the appellants in their affidavits on record.* *4. That the learned trial Magistrate erred ill law and in fact by arbitrarily revoking the confirmed Grant and subsequently proceeding to confirm the said grunt afresh by disregarding the appellants input and evidence.* *5. That the learned trial Magistrate erred in law and in fuel by relying on extraneous evidence not properly forming part of the record find without proper scrutiny.* *6. That the learned trial Magistrate erred in law and in [act by failing to exercise their judicial discretion judiciously and instead exhibited bias by selectively evaluating the Respondent's evidence and submissions.* *IT IS THEREFORE PROPOSED TO MOVE THE COURT ON THE FOLLOWING PRAYERS:* *a) That this appeal be allowed.* *b)* ***That the judgment. rulings and orders of the trial court issued on the 18th May, 2021, 23rd August, 2023 and 161h September, 2025 be set aside.*** *e) That the court do substitute the said decisions with an order allowing the appellant's proposed mode of distribution on record in the lower court.* *d) An order for the fresh distribution of the deceased person's estate among all lawful beneficiaries as per the deceased person's wishes.* *e) That the court do award the costs of this appeal and the lower court case to the appellants.”* 1. While it is not competent to file appeal from several decisions by one appeal, as indicated in the Memorandum challenging three decisions, save perhaps for substantive and procedural decisions made in the course of the substantive decision (see majority decision and dissenting opinion in the Court of Appeal case of ***Piyush Amrital Haria & 8 others v Panachand J. Shah [2009] KECA 2 (KLR)***), it is inconsequential as the Memorandum of Appeal attached herein is merely draft, which may be perfected before the actual lodging with the Court. 2. It is not possible to say that the intended appeal is frivolous as to disentitle the applicants leave to appeal out of time. It is an arguable appeal on the facts which may succeed at teh hearing, bearing in mind that ana rguable appeal does not mean one that must succeded at the hearing. 3. The objection by the Respondents that the applicants were aware of the proceedings relate only to the application filed in 2025 seeking to execute the Judgment and certificate of Confirmed Grant. It does not answer the ground of delivery of Judgment by the Court without notice and the photograph attached to the affidavit showing the service of the application upon one of the respondents may only relate to the post judgment process. 4. Indeed, the applicants state that they became aware of the move to implement of the Grant in October 2025. There is an element of delay for the period of November and December 2025 before the filing of this application on 18/1/2026, which is not explained. 5. However, the Court considers that the period of about two months of November and December 2025 before the application was filed in January is not inordinate, and in view of the substantial interest of the both parties in the final determination of the succession dispute, the Court will grant leave to appeal. 6. However, in view of want of explanation for the delay in the filing after the applicants became aware of the Protestors’ application for implementation, the applicants will be mulcted in Costs, in accordance with the Proviso to Order 50 Rule of the Civil procedure Rules which provides as follows: “” 1. The Court shall further give directions for filing and hearing of the appeal to ensure expeditious determination of the dispute between the parties in accordance with the overriding objective of the Civil process under sections 1A and 1B of the Civil Procedure Act. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds merit int he application dated 18/6/2026 and it is allowed in terms as follows: * + 1. The applicants are granted leave to appeal out of time from the judgment of the trial court dated 23/8/2023. 2. There shall be stay of execution of the Judgment dated 23/8/2023 and the certificate of Confirmed Grant issued thereon and any orders for the execution of transfer documents by the Executive Officer of the Court and or the Land Registrar, pending hearing and determination of the intended appeal. 2. The applicants shall in terms of Order 50 Rule 6 Proviso of the Civil Procedure Rules pay to the respondents the costs of this application. *Order accordingly.* **DATED AND DELIVERED THIS 23RD DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. C. S. Macharia for the Applicant. Ms. Joyce Wagatwe Respondent in person.