REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
PETITION NO. E006 OF 2025
IN THE MATTER OF; ARTICLES 1,2,3,6,10,19,20,21,22,23,27,28,40,47,48,60,162(1),165,232,258(1) AND 259(1) OF THE CONSTITUTION OF KENYA,2010
AND
IN THE MATTER OF SUCCESSION OF THE ESTATE OF ISYA GABABA CHEGE
AND
IN THE MATTER OF ELIZABETH ISAYA & SUSAN DIRAM GABABA
AND
IN THE MATTER OF UNCONSITUTIONAL, UNFAIR SUCCESSION, SUBDIVISION, REGISTRATION AND/OR DISPOSITION OF ANCESTRAL LAND IN THE ESTATE OF ISAYA GABABA CHEGE
BETWEEN
ELIZABETH ISAYA…………………………..…..1 ST PEITIONER/APPLICANT
SUSAN DIRAM GABABA………………………2 nd PEITIONER/APPLICANT
VERSUS
GURACHA GABABA CHEGE………………………....…1 ST RESPONDENT
CHEGE GABABA……………….………………..….…...2 nd RESPONDENT
JOSEPH GABABA………….…………..…….…...….....3 rd RESPONDENT
DAUDI GABABA……………………………..…..……..4 th RESPONDENT
TADIKO MATO CHARI………………………….…….5 th RESPONDENT
MUMINA QARE ABDIKADIR MUSA……….….…….6 th RESPONDENT
LAND REGISTRAR, ISIOLO REGISTRY…………….…7 th RESPONDENT
R U L I N G
A. Introduction
1. The application before this court for determination is the Petitioners/Applicants Notice of Motion application dated 13 th May 2026 brought pursuant to Articles 22,27,48,50, 159,258 and 259 of the Constitution of Kenya, provisions of Section 1A, 1B,3, 3A, and 95 of the Civil Procedure Act, Order 42 Rule 6, Order 50 Rule 6 of the Civil Procedure Rules 2010, Rule 26 of the Constitution of Kenya ( Protection of rights and fundamental freedoms) Practice and Procedure Rules, 2023 and all other enabling provisions of the law and all other enabling provisions of law. The applicant prays for orders that;
a) Spent
b) That this Honourbale court be pleased and hereby grants leave to the Applicants/intended Appellants to file an Appeal out of time against the order on costs contained in the ruling delivered on 16 th February 2026 in Marsabit HCCHRPET No. E006 of 2025.
c) That the applicants/Petitioners Notice of Appeal and Memorandum of Appeal herein be and are hereby deemed to be duly filed and properly on record.
d) Spent
e) That pending the hearing and determination of the intended Appeal, this Honourbale court be pleased and hereby grants stay of execution of the Order on costs of Kshs.150,000/= plus VAT arising from the ruling delivered on 16 th February 2026 in Marsabit HCCHRPET No E006 of 2025.
f) That costs of this Application abide the outcome of the intended Appeal.
2. This application is supported by the grounds on the face of the said application and the Supporting affidavit of the 1 st applicant, one Miss Elizabeth Isaya dated 13 th May 2026, where she averred that their petition was dismissed vide a ruling dated 16 th February 2026, which awarded the respondents costs of Kshs.150,000/= plus VAT and being dissatisfied by the said ruling on costs they intended to challenge the said exercise of judicial discretion before the court of Appeal based on the principal that access to justice overrides the ordinary rule that costs follow the event unless the petition is wholly frivolous and amounts to an abuse of the court process.
3. That owing to financial constraints, logistic challenges, delay in obtaining legal advice, they were unable to lodge the notice of appeal within the prescribed timelines, which delay was not deliberate nor inordinate and thus urged the court to allow the same. Further, they urged the court to also grant stay of execution as the respondents were intent on proceeding with execution of the said sum, which, if allowed would cause them substantial financial loss and damage.
4. They had filed this application in good faith, without unreasonable delay, and it was therefore fair, just, in the interest of justice, proportionality and access to justice that the orders sought herein be granted since the respondents would not be prejudice in any manner.
5. The respondent opposed this Application through the Replying affidavit of the 2 nd respondent Mr Samuel Isaya dated 21 st May 2026, where he averred that the application filed was devoid of merit, was an afterthought and constituted an abuse of the process of the court, thus ought to be dismissed in limine.
6. That though the ruling the applicants wanted to challenge had been delivered in the absence of the parties on 16 th February 2026, the court administrator had on the following day sent an email to all parties informing them of the same and advised them to access the said ruling on the CTS portal, where it had been uploaded.
7. No valid explanation had been given why the applicants had to wait for eighty-seven (87) days after the said ruling had been delivered, and after the respondents had filed their application to adopt the said ruling as a judgment of the court for purposes of extracting a decree and execution before filing the said application.
8. The said application had thus been filed purely as an afterthought, was made in bad faith and had not satisfied the requirements of granting leave to appeal out of time as the explanation proffered was casual, vague and a mockery of the ends of justice. The proposed appeal also had not chance of success as there was no error made by the learned judge to award the said amount of costs to the respondents.
9. The respondent thus prayed that this application be dismissed and the applicants be condemned to pay costs thereof.
(B). Analysis & Determination
10. I have carefully considered the Application, and the affidavits filed in support and in opposition thereto and the respondents’ submissions filed in opposition thereof. The issues which arise for determination is whether the applicants should be granted leave to Appeal out of time against the ruling/order delivered herein dated 16 th February 2026 and secondly if stay of execution should be granted pending determination of the Appeal, they intend to file.
(i) Leave to Appeal out of Time
11. Section 79G of the Civil Procedure Act provides that:
“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
12. The said provision is to be read with Order 50 rule 6 of the Civil procedure Rules which further provides that;
“ 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 powers to enlarge time upon such terms(if any) as the justice of the case may require, and such enlargement maybe ordered although the application for the same is not made until after the expiration of the time appointed or allowed.”
13. The Court of Appeal in the case of Thuita Mwangi V Kenya Airways Ltd [2003] eKLR discussed some of the factors that aid Courts in exercising the discretion whether to extend time to file an appeal out of time, they include the following:
i ) The period of delay;
ii) The reason for the delay;
iii)The arguability of the appeal;
iv)The degree of prejudice which could be suffered by the if Respondent the extension is granted;
v)The importance of compliance with time limits to the particular litigation or issue; and
vi) The effect if any on the administration of justice or public interest if any is involved.
14. Giving consideration to the above guiding factors, I do find that this application has been filed within a reasonable period of two months after the time allowed to file the appeal had lapse, the reasons advanced though week are plausible and the court is inclined to give the appellant the benefit of doubt, the proposed appeal raises triable issues and finally the prejudiced suffered by the respondent can be compensated by way of costs. The prayer for leave to lodge an appeal out of time against the ruling dated 16 th February 2026, specifically on the costs awarded thereof is thus allowed.
(ii) Stay of Execution
15. Stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules . It is evident from the said provision that power to grant stay of execution pending appeal is an exercise of discretion of the court on sufficient cause being shown by the Applicant that substantial loss may result to the applicant if the orders are denied; the application should be made without undue delay and the court will impose such security as the court may impose for the due performance of any decree or order as may ultimately be binding on the Applicant. See Amal Hauliers Limited Vs Abdulnasi Abukar Hassan (2017) eKLR & Butt Vs Rent Tribunal (1982) KLR 417
16. The appellant filed her application for leave to appeal out of time about two months after the ruling was delivered, and extension to appeal out of time has been granted herein above. For purposes of this application, a valid appeal can be inferred to have been filed.
17. On the likelihood of suffering substantial loss, and security of the appeal, the court has to balance the interest of the Applicant who seeks to preserve the status quo pending hearing of the appeal and to ensure the appeal is not rendered nugatory and the interest of the Respondent who seeks to enjoy the fruits of his judgment. In other words, the court should not only consider the interest of the Appellant but also consider, in all fairness, the interest of the Respondent who has been denied the fruit of his judgment. See Attorney General Vs Halal Meat Produces Limited Civil Application No. Nairobi 270 of 2008; Kenya Shell Ltd Vs Kibiru & another (Supreme); Mukuma Vs Abuoga (1988) KLR 645.
18. The law is that where the Applicant succeeds, he/she should not be faced with a situation in which he would find himself unable to get back his money. Likewise, the Respondent who has a decree in his favour should not, if the applicant is eventually unsuccessful in his intended appeal, find it difficult or impossible to realize the decree. This is the cornerstone of the requirement for security. See Court of Appeal in Nduhiu Gitahi Vs Warugongo (1988) KLR 621; IKAR 100;(1988-92) 2 KAR 100.
19. This appeal is against the ruling on costs awarded at Kshs.150,000/= , plus VAT, it would only be fair that the said amount be deposited in court pending hearing and determination of the said appeal.
C. DISPOSITITON
20. Taking all relevant factors into consideration, I do grant the following orders;
(a) The Appellant/Applicant is granted leave (10 days) to file and serve their Notice of Appeal out of time as against the Ruling/Order dated 16 th February 2026 delivered in Marsabit HCCHRPET No. E006 of 2025 awarding the Respondents costs thereof detrmined at Kshs.150,000/= plus VAT.
(b) That pending the hearing and determination of the intended Appeal, and order of stay of execution of the Ruling dated 16 th February 2026 delivered in Marsabit HCCHRPET No. E006 of 2025 be and is hereby issued on condition that the applicants deposit Kshs.174,000/= ( Costs plus VAT) in court within 60 days from the date of this Ruling.
(c) The costs of this Application will be in the cause.
(d) In default, execution will Issue.
21. It is so ordered .
READ, SIGNED and DELIVERED virtually at MARSABIT on this 17th day of SEPTEMBER 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this 17 th day of SEPTEMBER, 2026.
In the presence of;
………………………………….for Appellant
………………………………….for Respondent
Mr. JARSO…………………….Court Assistant
MARSABIT HCCHRPET E006/20252
IN THE HIGH COURT OF KENYA AT MARSABIT
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
PETITION NO. E006 OF 2025
IN THE MATTER OF; ARTICLES 1,2,3,6,10,19,20,21,22,23,27,28,40,47,48,60,162(1),165,232,258(1) AND 259(1) OF THE CONSTITUTION OF KENYA,2010
AND
IN THE MATTER OF SUCCESSION OF THE ESTATE OF ISYA GABABA CHEGE
AND
IN THE MATTER OF ELIZABETH ISAYA & SUSAN DIRAM GABABA
AND
IN THE MATTER OF UNCONSITUTIONAL, UNFAIR SUCCESSION, SUBDIVISION, REGISTRATION AND/OR DISPOSITION OF ANCESTRAL LAND IN THE ESTATE OF ISAYA GABABA CHEGE
BETWEEN
ELIZABETH ISAYA…………………………..…..1 ST PEITIONER/APPLICANT
SUSAN DIRAM GABABA………………………2 nd PEITIONER/APPLICANT
VERSUS
GURACHA GABABA CHEGE………………………....…1 ST RESPONDENT
CHEGE GABABA……………….………………..….…...2 nd RESPONDENT
JOSEPH GABABA………….…………..…….…...….....3 rd RESPONDENT
DAUDI GABABA……………………………..…..……..4 th RESPONDENT
TADIKO MATO CHARI………………………….…….5 th RESPONDENT
MUMINA QARE ABDIKADIR MUSA……….….…….6 th RESPONDENT
LAND REGISTRAR, ISIOLO REGISTRY…………….…7 th RESPONDENT
R U L I N G
A. Introduction
1. The application before this court for determination is the Petitioners/Applicants Notice of Motion application dated 13 th May 2026 brought pursuant to Articles 22,27,48,50, 159,258 and 259 of the Constitution of Kenya, provisions of Section 1A, 1B,3, 3A, and 95 of the Civil Procedure Act, Order 42 Rule 6, Order 50 Rule 6 of the Civil Procedure Rules 2010, Rule 26 of the Constitution of Kenya ( Protection of rights and fundamental freedoms) Practice and Procedure Rules, 2023 and all other enabling provisions of the law and all other enabling provisions of law. The applicant prays for orders that;
a) Spent
b) That this Honourbale court be pleased and hereby grants leave to the Applicants/intended Appellants to file an Appeal out of time against the order on costs contained in the ruling delivered on 16 th February 2026 in Marsabit HCCHRPET No. E006 of 2025.
c) That the applicants/Petitioners Notice of Appeal and Memorandum of Appeal herein be and are hereby deemed to be duly filed and properly on record.
d) Spent
e) That pending the hearing and determination of the intended Appeal, this Honourbale court be pleased and hereby grants stay of execution of the Order on costs of Kshs.150,000/= plus VAT arising from the ruling delivered on 16 th February 2026 in Marsabit HCCHRPET No E006 of 2025.
f) That costs of this Application abide the outcome of the intended Appeal.
2. This application is supported by the grounds on the face of the said application and the Supporting affidavit of the 1 st applicant, one Miss Elizabeth Isaya dated 13 th May 2026, where she averred that their petition was dismissed vide a ruling dated 16 th February 2026, which awarded the respondents costs of Kshs.150,000/= plus VAT and being dissatisfied by the said ruling on costs they intended to challenge the said exercise of judicial discretion before the court of Appeal based on the principal that access to justice overrides the ordinary rule that costs follow the event unless the petition is wholly frivolous and amounts to an abuse of the court process.
3. That owing to financial constraints, logistic challenges, delay in obtaining legal advice, they were unable to lodge the notice of appeal within the prescribed timelines, which delay was not deliberate nor inordinate and thus urged the court to allow the same. Further, they urged the court to also grant stay of execution as the respondents were intent on proceeding with execution of the said sum, which, if allowed would cause them substantial financial loss and damage.
4. They had filed this application in good faith, without unreasonable delay, and it was therefore fair, just, in the interest of justice, proportionality and access to justice that the orders sought herein be granted since the respondents would not be prejudice in any manner.
5. The respondent opposed this Application through the Replying affidavit of the 2 nd respondent Mr Samuel Isaya dated 21 st May 2026, where he averred that the application filed was devoid of merit, was an afterthought and constituted an abuse of the process of the court, thus ought to be dismissed in limine.
6. That though the ruling the applicants wanted to challenge had been delivered in the absence of the parties on 16 th February 2026, the court administrator had on the following day sent an email to all parties informing them of the same and advised them to access the said ruling on the CTS portal, where it had been uploaded.
7. No valid explanation had been given why the applicants had to wait for eighty-seven (87) days after the said ruling had been delivered, and after the respondents had filed their application to adopt the said ruling as a judgment of the court for purposes of extracting a decree and execution before filing the said application.
8. The said application had thus been filed purely as an afterthought, was made in bad faith and had not satisfied the requirements of granting leave to appeal out of time as the explanation proffered was casual, vague and a mockery of the ends of justice. The proposed appeal also had not chance of success as there was no error made by the learned judge to award the said amount of costs to the respondents.
9. The respondent thus prayed that this application be dismissed and the applicants be condemned to pay costs thereof.
(B). Analysis & Determination
10. I have carefully considered the Application, and the affidavits filed in support and in opposition thereto and the respondents’ submissions filed in opposition thereof. The issues which arise for determination is whether the applicants should be granted leave to Appeal out of time against the ruling/order delivered herein dated 16 th February 2026 and secondly if stay of execution should be granted pending determination of the Appeal, they intend to file.
(i) Leave to Appeal out of Time
11. Section 79G of the Civil Procedure Act provides that:
“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
12. The said provision is to be read with Order 50 rule 6 of the Civil procedure Rules which further provides that;
“ 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 powers to enlarge time upon such terms(if any) as the justice of the case may require, and such enlargement maybe ordered although the application for the same is not made until after the expiration of the time appointed or allowed.”
13. The Court of Appeal in the case of Thuita Mwangi V Kenya Airways Ltd [2003] eKLR discussed some of the factors that aid Courts in exercising the discretion whether to extend time to file an appeal out of time, they include the following:
i ) The period of delay;
ii) The reason for the delay;
iii)The arguability of the appeal;
iv)The degree of prejudice which could be suffered by the if Respondent the extension is granted;
v)The importance of compliance with time limits to the particular litigation or issue; and
vi) The effect if any on the administration of justice or public interest if any is involved.
14. Giving consideration to the above guiding factors, I do find that this application has been filed within a reasonable period of two months after the time allowed to file the appeal had lapse, the reasons advanced though week are plausible and the court is inclined to give the appellant the benefit of doubt, the proposed appeal raises triable issues and finally the prejudiced suffered by the respondent can be compensated by way of costs. The prayer for leave to lodge an appeal out of time against the ruling dated 16 th February 2026, specifically on the costs awarded thereof is thus allowed.
(ii) Stay of Execution
15. Stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules . It is evident from the said provision that power to grant stay of execution pending appeal is an exercise of discretion of the court on sufficient cause being shown by the Applicant that substantial loss may result to the applicant if the orders are denied; the application should be made without undue delay and the court will impose such security as the court may impose for the due performance of any decree or order as may ultimately be binding on the Applicant. See Amal Hauliers Limited Vs Abdulnasi Abukar Hassan (2017) eKLR & Butt Vs Rent Tribunal (1982) KLR 417
16. The appellant filed her application for leave to appeal out of time about two months after the ruling was delivered, and extension to appeal out of time has been granted herein above. For purposes of this application, a valid appeal can be inferred to have been filed.
17. On the likelihood of suffering substantial loss, and security of the appeal, the court has to balance the interest of the Applicant who seeks to preserve the status quo pending hearing of the appeal and to ensure the appeal is not rendered nugatory and the interest of the Respondent who seeks to enjoy the fruits of his judgment. In other words, the court should not only consider the interest of the Appellant but also consider, in all fairness, the interest of the Respondent who has been denied the fruit of his judgment. See Attorney General Vs Halal Meat Produces Limited Civil Application No. Nairobi 270 of 2008; Kenya Shell Ltd Vs Kibiru & another (Supreme); Mukuma Vs Abuoga (1988) KLR 645.
18. The law is that where the Applicant succeeds, he/she should not be faced with a situation in which he would find himself unable to get back his money. Likewise, the Respondent who has a decree in his favour should not, if the applicant is eventually unsuccessful in his intended appeal, find it difficult or impossible to realize the decree. This is the cornerstone of the requirement for security. See Court of Appeal in Nduhiu Gitahi Vs Warugongo (1988) KLR 621; IKAR 100;(1988-92) 2 KAR 100.
19. This appeal is against the ruling on costs awarded at Kshs.150,000/= , plus VAT, it would only be fair that the said amount be deposited in court pending hearing and determination of the said appeal.
C. DISPOSITITON
20. Taking all relevant factors into consideration, I do grant the following orders;
(a) The Appellant/Applicant is granted leave (10 days) to file and serve their Notice of Appeal out of time as against the Ruling/Order dated 16 th February 2026 delivered in Marsabit HCCHRPET No. E006 of 2025 awarding the Respondents costs thereof detrmined at Kshs.150,000/= plus VAT.
(b) That pending the hearing and determination of the intended Appeal, and order of stay of execution of the Ruling dated 16 th February 2026 delivered in Marsabit HCCHRPET No. E006 of 2025 be and is hereby issued on condition that the applicants deposit Kshs.174,000/= ( Costs plus VAT) in court within 60 days from the date of this Ruling.
(c) The costs of this Application will be in the cause.
(d) In default, execution will Issue.
21. It is so ordered .
READ, SIGNED and DELIVERED virtually at MARSABIT on this 17th day of SEPTEMBER 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this 17 th day of SEPTEMBER, 2026.
In the presence of;
………………………………….for Appellant
………………………………….for Respondent
Mr. JARSO…………………….Court Assistant
MARSABIT HCCHRPET E006/20252