REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
FAMILY MISCELLANEOUS APPLICATION NO E006 OF 2025
FRANCIS EGOSANGWA KAGULI……………….………………………APPLICANT
VERSUS
SERINA KAGURI…………………………………………………………RESPONDENT
RULING
INTRODUCTION
1. In his undated Notice of Motion that was filed on 7 th May 2025 , the Applicant herein sought that he be granted leave to appeal the Ruling of Hon M. Ochieng that was delivered on 30 th August 2024 in Hamisi Succession Misc Cause No 111 of 2020 , out of time.
2. He swore an Affidavit in support of his said application on 5 th May 2025. He averred that he took time to instruct another advocate after his earlier advocate failed to file an appeal or take further steps after lodging the Notice of Appeal. He added that he had been discriminated against in the transmission process on the ground of disability contrary to Article 27 of the Constitution of Kenya. He contended that he had brought the application in good faith which would serve the ends of justice.
3. The Respondent swore a Replying Affidavit on 19 th June 2025 in opposition to the Applicant’s present application. The same was filed on 27 th June 2025.
4. She explained that she was the wife of Gaguli Balusi (deceased), whose estate was in contention while the Applicant was his step son. She averred that she was ailing and the Applicant had engaged her in several matters in court which were closed. She stated that a Ruling in Hamisi Succession Misc Cause No 111 of 2020 was delivered in the presence of all parties, with the Applicant being represented by his advocate.
5. She further contended that the application was not satisfactory as the lower court distributed the deceased’s properties equally and that the Applicant had not exhibited any discrimination visited upon him. She was emphatic that the delay in filing the present application and appeal was an afterthought and that filing the current application ten (10) months after the aforesaid Ruling was a scheme of frustrating her. She contended that the Applicant had no good and sufficient cause for his failure to file the appeal on time and thus urged this court to dismiss his application.
6. The Applicant’s Written Submissions were dated and filed on 27 th October 2025. On the same date, the Respondent’s counsel informed the court that he did not intend to file Written Submissions. This Ruling is, therefore, based on the affidavit evidence and the Applicant’s Written Submissions only.
LEGAL ANALYSIS
7. The Applicant cited Section 79G of the Civil Procedure Act and placed reliance on the case of Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 others [2014] eKLR , in which the Supreme Court outlined guiding principles for extension of time.
8. He pointed out that he was aggrieved by how the estate was distributed in that, his disability was not taken into consideration contrary to law and constitutional dictates. He asserted that he was disillusioned by the way his former advocate handled the case and failed to file an appeal within the prescribed time despite having given him instructions to do so.
9. He added that the reason for the delay was that he was visually impaired and thus required assistance in both understanding legal proceedings and in instructing legal counsel. He stated that the delay in filing an appeal was a bona fide mistake and urged the court to rely on the principle of overriding objective as was provided in Article 159(2)(d) of the Constitution of Kenya. He placed reliance on the case of Belinda Murai & Others v Amos Wainaina [1979] eKLR to emphasise that a litigant should not be unduly punished for the mistakes or omissions of counsel, who was experienced and ought to have known better.
10. He averred that he was allocated land that was not accessible and lay far from the road, thereby aggravating his insecurity and vulnerability. He was emphatic that being a person with disability (PWD) as was envisaged under Article 54(1) of the Constitution of Kenya, he was entitled to reasonable access to all places, public transport and information and to be treated with dignity and respect. He argued that his physically and economically vulnerability ought to be considered in evaluating the sufficiency of the delay.
11. He submitted that the appeal had raised triable issues as he intended to challenge the equal distribution of the estate without regard to his special needs. He cited Article 27(6) of the Constitution of Kenya which mandated affirmative action programs and policies designed to redress disadvantages suffered by individuals or groups because of past discrimination.
12. He also referred to Section 26 of the Law of Succession Act to the effect that courts had interpreted the said provision to include situations where a special needs beneficiary was excluded or insufficiently provided for. He further cited Section 40(1) of the Law of Succession Act and the case of Mary Rono vs Jane Rono & Another [2005] KECA 326 (KLR) where it was held that when distributing a deceased’s estate where he had a polygamous family, Section 40(1) of the Law of Succession Act did not envisage that each child would get equal distribution but rather, other deserving dependants could be disadvantaged.
13. He submitted that the intended appeal, therefore, raised arguable legal and constitutional questions, particularly the intersection of succession law and constitutional protections for persons with disabilities.
14. As to whether his disability entitled him to preferential consideration in the distribution of the estate, he relied on the Persons with Disabilities Act, 2003, and the Convention on the Rights of Persons with Disabilities (CRPD) to wit, that state organs and courts were required to ensure that persons with disabilities enjoyed equal access to justice, land, and inheritance.
15. He relied on the case In re Estate of the Late Siwanyang Ngilotochi (Deceased) [2021] eKLR in which the case of Rahab Njeri Kariuki v Joyce Waruguru Kariuki & 2 Others 2016] KEHC 5969 (KLR) was cited and it was held that equality had to be viewed through the lens of equity and fairness, and not merely numeric parity especially in polygamous household.
16. In exercising its discretion to allow an application seeking extension to file an appeal out of time, a court had to be satisfied that the omission to file the same within time was excusable. In other words, there had to be a plausible explanation for the delay in filing the appeal.
17. It was apparent from the court record that the decision the Applicant intended to appeal against a decision that was delivered on 30 th August 2024. The present application was filed on 7 th May 2025. About nine (9) months and seven (7) days had since passed. This was an inordinately long period.
18. Be that as it may, in considering whether or not to grant an order for extension to do any act, the court was required to consider if the opposing side would suffer any prejudice if extension of time was granted. The Applicant stated that he needed time to engage an advocate to act for him. Although the Respondent was ailing, this court did not see any prejudice that she would suffer or was likely to suffer if the Applicant herein exercised his constitutional right of appeal.
19. Taking all the factors hereinabove into account, it was the considered view of this court that that it was in the interests of justice that the Applicant be given an opportunity to have his intended Appeal heard on merit as he would suffer actually prejudice if he was denied an opportunity to fully present his Appeal to be heard on merit.
20. Indeed, every party has a right to access any court or tribunal to have its dispute heard and determined in accordance with Article 50(1) of the Constitution of Kenya, 2010. Even where a party delayed in doing an act, there was always a provision that would give it reprieve to seek justice.
21. Notably, Order 50 Rule 6 of Civil Procedure Rules, 2010 empowers the court to enlarge the time to do a particular act. The said Order 50 Rule 6 of Civil Procedure Rules stipulates as follows:-
“ 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”.
22. Indeed, the power to grant orders in the interest of justice and/or for the ends of justice (emphasis court) was well captured in Section 3A of the Civil Procedure Act that states that:-
“Nothing in the Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice (emphasis court) or to prevent abuse of the process of the court.”
23. Having said so, as was stated hereinabove, the Applicant had the responsibility of following up the matter with his advocate Failure to do so showed that he was indolent. Under normal circumstances, this court would not have allowed him to go scot free. This court would have condemned him to pay the Respondent herein costs to compensate her for being taken back in litigation when she was expected to have presumed that there would be no further litigation in view of the long period the Applicant had taken to move the court.
24. However, as this was a family matter, this court deviated from the general principle that costs follow the events so as not to cause further strain in the relationship between the Applicant and the Respondent herein, who were both beneficiaries of the estate of Gaguli Balusi.
DISPOSITION
25. For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s undated Notice of Motion that was filed on 7 th May 2025 was merited and the Prayer No (2) be and is hereby allowed in the following terms: -
1. The Applicant be and is hereby directed to file and serve his Memorandum of Appeal within fourteen (14) days from the date of this Ruling.
2. The Applicant be and is hereby directed to file a Record of Appeal within one hundred and twenty (120) days from the date of this Ruling.
3. This matter will be mentioned on 30 th July 2026 before the Presiding Judge in Vihiga High Court to confirm compliance and/or for further orders and/or directions.
26. It is so ordered.
DATED and DELIVERED at VIHIGA this 28 th day of April 2026
J. KAMAU
JUDGE
hcfpa misc appl no e006 of 20258
IN THE HIGH COURT OF KENYA AT VIHIGA
FAMILY MISCELLANEOUS APPLICATION NO E006 OF 2025
FRANCIS EGOSANGWA KAGULI……………….………………………APPLICANT
VERSUS
SERINA KAGURI…………………………………………………………RESPONDENT
RULING
INTRODUCTION
1. In his undated Notice of Motion that was filed on 7 th May 2025 , the Applicant herein sought that he be granted leave to appeal the Ruling of Hon M. Ochieng that was delivered on 30 th August 2024 in Hamisi Succession Misc Cause No 111 of 2020 , out of time.
2. He swore an Affidavit in support of his said application on 5 th May 2025. He averred that he took time to instruct another advocate after his earlier advocate failed to file an appeal or take further steps after lodging the Notice of Appeal. He added that he had been discriminated against in the transmission process on the ground of disability contrary to Article 27 of the Constitution of Kenya. He contended that he had brought the application in good faith which would serve the ends of justice.
3. The Respondent swore a Replying Affidavit on 19 th June 2025 in opposition to the Applicant’s present application. The same was filed on 27 th June 2025.
4. She explained that she was the wife of Gaguli Balusi (deceased), whose estate was in contention while the Applicant was his step son. She averred that she was ailing and the Applicant had engaged her in several matters in court which were closed. She stated that a Ruling in Hamisi Succession Misc Cause No 111 of 2020 was delivered in the presence of all parties, with the Applicant being represented by his advocate.
5. She further contended that the application was not satisfactory as the lower court distributed the deceased’s properties equally and that the Applicant had not exhibited any discrimination visited upon him. She was emphatic that the delay in filing the present application and appeal was an afterthought and that filing the current application ten (10) months after the aforesaid Ruling was a scheme of frustrating her. She contended that the Applicant had no good and sufficient cause for his failure to file the appeal on time and thus urged this court to dismiss his application.
6. The Applicant’s Written Submissions were dated and filed on 27 th October 2025. On the same date, the Respondent’s counsel informed the court that he did not intend to file Written Submissions. This Ruling is, therefore, based on the affidavit evidence and the Applicant’s Written Submissions only.
LEGAL ANALYSIS
7. The Applicant cited Section 79G of the Civil Procedure Act and placed reliance on the case of Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 others [2014] eKLR , in which the Supreme Court outlined guiding principles for extension of time.
8. He pointed out that he was aggrieved by how the estate was distributed in that, his disability was not taken into consideration contrary to law and constitutional dictates. He asserted that he was disillusioned by the way his former advocate handled the case and failed to file an appeal within the prescribed time despite having given him instructions to do so.
9. He added that the reason for the delay was that he was visually impaired and thus required assistance in both understanding legal proceedings and in instructing legal counsel. He stated that the delay in filing an appeal was a bona fide mistake and urged the court to rely on the principle of overriding objective as was provided in Article 159(2)(d) of the Constitution of Kenya. He placed reliance on the case of Belinda Murai & Others v Amos Wainaina [1979] eKLR to emphasise that a litigant should not be unduly punished for the mistakes or omissions of counsel, who was experienced and ought to have known better.
10. He averred that he was allocated land that was not accessible and lay far from the road, thereby aggravating his insecurity and vulnerability. He was emphatic that being a person with disability (PWD) as was envisaged under Article 54(1) of the Constitution of Kenya, he was entitled to reasonable access to all places, public transport and information and to be treated with dignity and respect. He argued that his physically and economically vulnerability ought to be considered in evaluating the sufficiency of the delay.
11. He submitted that the appeal had raised triable issues as he intended to challenge the equal distribution of the estate without regard to his special needs. He cited Article 27(6) of the Constitution of Kenya which mandated affirmative action programs and policies designed to redress disadvantages suffered by individuals or groups because of past discrimination.
12. He also referred to Section 26 of the Law of Succession Act to the effect that courts had interpreted the said provision to include situations where a special needs beneficiary was excluded or insufficiently provided for. He further cited Section 40(1) of the Law of Succession Act and the case of Mary Rono vs Jane Rono & Another [2005] KECA 326 (KLR) where it was held that when distributing a deceased’s estate where he had a polygamous family, Section 40(1) of the Law of Succession Act did not envisage that each child would get equal distribution but rather, other deserving dependants could be disadvantaged.
13. He submitted that the intended appeal, therefore, raised arguable legal and constitutional questions, particularly the intersection of succession law and constitutional protections for persons with disabilities.
14. As to whether his disability entitled him to preferential consideration in the distribution of the estate, he relied on the Persons with Disabilities Act, 2003, and the Convention on the Rights of Persons with Disabilities (CRPD) to wit, that state organs and courts were required to ensure that persons with disabilities enjoyed equal access to justice, land, and inheritance.
15. He relied on the case In re Estate of the Late Siwanyang Ngilotochi (Deceased) [2021] eKLR in which the case of Rahab Njeri Kariuki v Joyce Waruguru Kariuki & 2 Others 2016] KEHC 5969 (KLR) was cited and it was held that equality had to be viewed through the lens of equity and fairness, and not merely numeric parity especially in polygamous household.
16. In exercising its discretion to allow an application seeking extension to file an appeal out of time, a court had to be satisfied that the omission to file the same within time was excusable. In other words, there had to be a plausible explanation for the delay in filing the appeal.
17. It was apparent from the court record that the decision the Applicant intended to appeal against a decision that was delivered on 30 th August 2024. The present application was filed on 7 th May 2025. About nine (9) months and seven (7) days had since passed. This was an inordinately long period.
18. Be that as it may, in considering whether or not to grant an order for extension to do any act, the court was required to consider if the opposing side would suffer any prejudice if extension of time was granted. The Applicant stated that he needed time to engage an advocate to act for him. Although the Respondent was ailing, this court did not see any prejudice that she would suffer or was likely to suffer if the Applicant herein exercised his constitutional right of appeal.
19. Taking all the factors hereinabove into account, it was the considered view of this court that that it was in the interests of justice that the Applicant be given an opportunity to have his intended Appeal heard on merit as he would suffer actually prejudice if he was denied an opportunity to fully present his Appeal to be heard on merit.
20. Indeed, every party has a right to access any court or tribunal to have its dispute heard and determined in accordance with Article 50(1) of the Constitution of Kenya, 2010. Even where a party delayed in doing an act, there was always a provision that would give it reprieve to seek justice.
21. Notably, Order 50 Rule 6 of Civil Procedure Rules, 2010 empowers the court to enlarge the time to do a particular act. The said Order 50 Rule 6 of Civil Procedure Rules stipulates as follows:-
“ 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”.
22. Indeed, the power to grant orders in the interest of justice and/or for the ends of justice (emphasis court) was well captured in Section 3A of the Civil Procedure Act that states that:-
“Nothing in the Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice (emphasis court) or to prevent abuse of the process of the court.”
23. Having said so, as was stated hereinabove, the Applicant had the responsibility of following up the matter with his advocate Failure to do so showed that he was indolent. Under normal circumstances, this court would not have allowed him to go scot free. This court would have condemned him to pay the Respondent herein costs to compensate her for being taken back in litigation when she was expected to have presumed that there would be no further litigation in view of the long period the Applicant had taken to move the court.
24. However, as this was a family matter, this court deviated from the general principle that costs follow the events so as not to cause further strain in the relationship between the Applicant and the Respondent herein, who were both beneficiaries of the estate of Gaguli Balusi.
DISPOSITION
25. For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s undated Notice of Motion that was filed on 7 th May 2025 was merited and the Prayer No (2) be and is hereby allowed in the following terms: -
1. The Applicant be and is hereby directed to file and serve his Memorandum of Appeal within fourteen (14) days from the date of this Ruling.
2. The Applicant be and is hereby directed to file a Record of Appeal within one hundred and twenty (120) days from the date of this Ruling.
3. This matter will be mentioned on 30 th July 2026 before the Presiding Judge in Vihiga High Court to confirm compliance and/or for further orders and/or directions.
26. It is so ordered.
DATED and DELIVERED at VIHIGA this 28 th day of April 2026
J. KAMAU
JUDGE
hcfpa misc appl no e006 of 20258