1. The Hon. Kadhi Omar K Swaleh delivered a ruling on 6th July 2023 in the Mombasa Kadhi’s Court, Succession Cause No. 88 of 2008; In the Matter of the Estate of the late Ali Khator Salim (deceased). Being aggrieved by that decision, the intended appellant seeks to appeal.
2. As the time within which he could appear had lapsed more than 2 years prior thereto, the applicant filed the Notice of Motion application dated 22nd September 2025 seeking leave to appeal out of time and for a stay pending appeal, for the draft Memorandum of Appeal to be deemed as duly filed and served and for costs to be provided for.
3. The application was opposed by the respondent by an affidavit sworn by the respondent on 1st October 2025.
4. As this matter was pending, the respondent died. According to the death certificate, he died on 23rd October 2025. Mr Yusuf Said Abdulrahim was issued with a limited grant ad litem on 24th November 2025 by the Hon Gatheru in CM Succession Cause No. E184 of 2025, on 18th December 2025. The said administrator filed an application for substitution. Although the application is not in the correct form, I will allow it, noting that Mr Yusuf is a pro se litigant.
5. Should the application for leave to appeal out of time be allowed? I note that there has been no proper explanation for the delay in filing the application now before the court. It may be true that the applicant made a mistake in filing the appeal in the Environment and Land Court rather than at the High Court. The Environment and Land Court upheld a preliminary objection raised regarding its jurisdiction on 5th February 2024. There is no explanation for the delay between the said date and 22nd September 2025, when the instant application was filed.
6. In Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR, it was held that:
“8 It is now well settled by a long line of authorities by this court that a decision of whether or not to extend the time of filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether to grant an extension of time are the length of delay, the reason for the delay, the chances of appeal succeeding, if the application is granted, the degree of prejudice to the respondent if the application is granted.”
7. The delay on the part of the applicant was inordinate. No proper explanation was given for the delay. In such circumstances, I am not persuaded that this court should exercise its discretion in favour of an applicant who is clearly tardy and disinterested in prosecuting his own appeal.
8. The upshot of the foregoing is that the application dated 22nd September 2025 is dismissed with costs to the Respondent.
9. It is so ordered.
Dated and signed at Nairobi this 26th day of June 2026.
2. As the time within which he could appear had lapsed more than 2 years prior thereto, the applicant filed the Notice of Motion application dated 22nd September 2025 seeking leave to appeal out of time and for a stay pending appeal, for the draft Memorandum of Appeal to be deemed as duly filed and served and for costs to be provided for.
3. The application was opposed by the respondent by an affidavit sworn by the respondent on 1st October 2025.
4. As this matter was pending, the respondent died. According to the death certificate, he died on 23rd October 2025. Mr Yusuf Said Abdulrahim was issued with a limited grant ad litem on 24th November 2025 by the Hon Gatheru in CM Succession Cause No. E184 of 2025, on 18th December 2025. The said administrator filed an application for substitution. Although the application is not in the correct form, I will allow it, noting that Mr Yusuf is a pro se litigant.
5. Should the application for leave to appeal out of time be allowed? I note that there has been no proper explanation for the delay in filing the application now before the court. It may be true that the applicant made a mistake in filing the appeal in the Environment and Land Court rather than at the High Court. The Environment and Land Court upheld a preliminary objection raised regarding its jurisdiction on 5th February 2024. There is no explanation for the delay between the said date and 22nd September 2025, when the instant application was filed.
6. In Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR, it was held that:
“8 It is now well settled by a long line of authorities by this court that a decision of whether or not to extend the time of filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether to grant an extension of time are the length of delay, the reason for the delay, the chances of appeal succeeding, if the application is granted, the degree of prejudice to the respondent if the application is granted.”
7. The delay on the part of the applicant was inordinate. No proper explanation was given for the delay. In such circumstances, I am not persuaded that this court should exercise its discretion in favour of an applicant who is clearly tardy and disinterested in prosecuting his own appeal.
8. The upshot of the foregoing is that the application dated 22nd September 2025 is dismissed with costs to the Respondent.
9. It is so ordered.
Dated and signed at Nairobi this 26th day of June 2026.