FRANCIS KIARIE MANYARA…….……..…………..…..…APPLICANT
VERSUS
ELIZABETH MUTHONI MANYARA……...................RESPONDENT
RULING
BACKGROUND
1. The Notice of Motion dated 27 th March, 2025 was brought pursuant to, Order 9 Rule 9, Ordre 50 Rule 6, Order 42 Rule 6 and 27 of the Civil Procedure Rules and Sections 78 and 79G of the Civil Procedure Act; the Applicant seeks for the following orders;
a. SPENT
b. THAT this Honourable Court be pleased to extend the time within which the Applicant may file an appeal against the rulings dated 7/02/2024 and 12/06/2024 and the Certificate of Confirmation issued in Succession Cause No. 104 of 2017 at Limuru Lower Courts.
c. THAT this Honourable Court grants leave to the Applicant to file the Memorandum of Appeal out of time.
d. THAT pending the hearing and determination of this application and the intended appeal a stay of execution be granted to prevent further demolition of houses, destruction of fences, eviction of beneficiaries and interference with traditional estate boundaries set by the deceased.
e. SPENT
f. THAT for purposes of security, the OCS, Kijabe Police Station be directed to ensure compliance with the interim orders issued by this Honourable Court.
g. THAT the Respondents be ordered to meet the costs of the damage and destruction of the fences and gates and any destruction of any kind caused.
h. THAT this Honourable Court be pleased to grant leave to the Applicant to adduce additional evidence pursuant to Order 42 Rule 27 of the Civil Procedure Rules 2010 and Section 78 of the Civil Procedure Act, by admitting the following documents as part of the appeal; the sale agreement between the deceased (Manyara Kamau) and Wanguhu David, Court pleadings on the said property between the deceased and Nimrod W. David in land case No.25 of 1983, Transfer of Land Form signed by the Senior Resident Magistrate as for and on behalf of Wanguhu David as per the Order made in Senior Resident Magistrate Court Case No.25 of 1983, Fee receipts from Department of Lands dated 11/01/1984 for Title Number Lari Kijabe/194 for Kshs.125 and Fee Receipts from Department of Lands dated 11/01/1984 for Title Number Lari/Kijabe/194 for Kshs.685, a copy of the green card search dated 1/11/2016.
i. THAT the annexed Memorandum of Appeal be deemed as duly filed upon payment of the requisite court fees.
j. THAT the costs of this application be in the cause.
2. The Application was supported by the grounds on the face of the application and on the sworn Affidavit of FRANCIS KIARIE MANYARA who stated that the intended Appellant was aggrieved with the Rulings dated 7/02/2024 and 12/06/2024 and the Certificate of Confirmation of Grant dated 14/11/2024 in Succession Cause No. 104 of 2017 at Limuru Lower Court.
3. The Applicant being dissatisfied with the whole ruling intends to file an appeal against the Rulings as it has occasioned great injustice to him; therefore securing funds on the 3/10/2022 he filed the instant application;
4. The parties were directed to canvass the application by way of written submissions; hereunder is a summary of the parties rival submissions;
APPLICANT’S CASE
5. The Applicant submitted that the delay was occasioned by the withdrawal of the Memorandum of Appeal due to procedural defects requiring prior leave of the Court. That the delay was not deliberate but arose from the need to comply with due legal process.
6. The outgoing advocate had refused and or neglected to sign the consent for change of representation necessitating this application for leave.
7. That the intended appeal raises fundamental legal issues including the trial courts lack of jurisdiction and erroneous exclusion of contested property from the estate distribution.
8. The trial court had ruled that the contested property did not form part of the estate yet it had been included it for distribution; The Respondents failed to provide documentary evidence explaining how the property was transferred. The trial court denied the Applicants witnesses the opportunity to testify on this critical issue.
9. That the delay was not inordinate as the application was brought at the earliest time as was practicably possible. It was the Applicant’s case that unless the orders sought were granted he would suffer irreparable loss and the appeal would be rendered nugatory.
RESPONDENT’S CASE
10. The application was opposed and the Respondent argued that the application is based ………
11. The Respondent urged the court to dismiss the application with costs to the Respondent.
ISSUES FOR DETERMINATION
12. Having considered the Application, Replying Affidavit and the written submissions this court frames the following issue for determination;
a. Whether the Applicant should be granted leave to file appeal out of time;
ANALYSIS
13. The applicable law is found under Section 79G of the Civil Procedure Act which grants the court powers to enlarge time in which to file an appeal. Section 79G of the Civil Procedure Act provides as follows 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.”
14. The principles that aid Courts in exercising the discretion as to whether to extend time to file an appeal out of time were suggested by the Court of Appeal in Thuita Mwangi V Kenya Airways Ltd [2003] eKLR. They include the following:-
(i) The period of delay;
ii) The reason for the delay;
iii) The argue-ability of the appeal;
iv) The degree of prejudice which could be suffered by the if Respondent the extension is granted;
15. On the issue of period of delay it is noted that the Respondent on 13/06/2018 filed a claim against the Applicant in Thika CMCC NO. 485 OF 2018 for Kshs. 518,440/=. An ex-parte judgment was entered on 2/01/2019 causing the Applicant to file his application to set the said judgment aside on 11/09/2019. In its ruling dated 3/08/2022, the trial court dismissed the Applicant’s Preliminary Objection.
16. Being aggrieved with the decision, the Applicant filed this application seeking leave to appeal out of time against the decision dated 3/10/2022.The Applicant annexed the impugned ruling that was delivered on 3/08/2022 to his application seeking leave to appeal out of time which was filed on 3/10/2022 and it is noted that the period of delay translates to a period of two (2) months; There are legions of authorities that have found a period of four (4) months not to be inordinate; herein the period of delay translates to two months which period this court is satisfied cannot be deemed as inordinate.
17. The reason for the delay advanced by the Applicant was the need to adhere to the legal procedures. A request had been made to the previous advocates on record for consent to the change of advocates. The said firm of advocates having failed and or neglected to sign the necessary consent for change of representation the applicant was compelled to file an application seeking for the courts leave to come on record.
18. The need to look for alternative counsel to prosecute the appeal; the reasons given for the delay, the first one being finances, the second one being……………; this court is satisfied that the Applicant has given a reasonable and satisfactory explanation given for the delay.
19. On the arguability of the Appeal the Applicant attached a copy of the impugned Ruling dated …………………and a copy of the Draft Memorandum of Appeal to his application. It is noted that the trial court found that the Applicant had been properly served with the pleadings. And after the trial court perused the Draft Memorandum of Appeal also found that it raised arguable issues to warrant the granting of the orders sought.
20. The main issue is jurisdiction of the trial court and after perusal of the impugned Ruling in the Draft Memorandum of Appeal this court is satisfied that the intended appeal on the issue of jurisdiction and of fair trial raises triable issues; this a fundamental right that the trial court may have disregarded; for those reasons this court is satisfied that the Applicant has an arguable appeal.
21. On the issue of security , the Court has noted that the Applicant has already complied with this condition when seeking for orders for stay of execution.
FINDINGS AND DETRMINATION
22. For those reasons this court makes the following findings and determination;
(i) The application is found to have merit and it is hereby allowed
(ii) Leave to appeal out of time is hereby granted; time to file the appeal is hereby enlarged by forty-five (45) days from the date hereof;
(iii) The Record of Appeal be filed and served within Forty-five (45) days hereof. In default the orders shall stand vacated.
(iv) The Applicant shall bear the costs of this application.
Orders Accordingly.
DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 27 TH DAY OF FEBRUARY, 2026
A. MSHILA
JUDGE
In the presence of;
Sanja – Court Assistant
Okumu - for the Applicant
Masaviru - for the Respondent
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VERSUS
ELIZABETH MUTHONI MANYARA……...................RESPONDENT
RULING
BACKGROUND
1. The Notice of Motion dated 27 th March, 2025 was brought pursuant to, Order 9 Rule 9, Ordre 50 Rule 6, Order 42 Rule 6 and 27 of the Civil Procedure Rules and Sections 78 and 79G of the Civil Procedure Act; the Applicant seeks for the following orders;
a. SPENT
b. THAT this Honourable Court be pleased to extend the time within which the Applicant may file an appeal against the rulings dated 7/02/2024 and 12/06/2024 and the Certificate of Confirmation issued in Succession Cause No. 104 of 2017 at Limuru Lower Courts.
c. THAT this Honourable Court grants leave to the Applicant to file the Memorandum of Appeal out of time.
d. THAT pending the hearing and determination of this application and the intended appeal a stay of execution be granted to prevent further demolition of houses, destruction of fences, eviction of beneficiaries and interference with traditional estate boundaries set by the deceased.
e. SPENT
f. THAT for purposes of security, the OCS, Kijabe Police Station be directed to ensure compliance with the interim orders issued by this Honourable Court.
g. THAT the Respondents be ordered to meet the costs of the damage and destruction of the fences and gates and any destruction of any kind caused.
h. THAT this Honourable Court be pleased to grant leave to the Applicant to adduce additional evidence pursuant to Order 42 Rule 27 of the Civil Procedure Rules 2010 and Section 78 of the Civil Procedure Act, by admitting the following documents as part of the appeal; the sale agreement between the deceased (Manyara Kamau) and Wanguhu David, Court pleadings on the said property between the deceased and Nimrod W. David in land case No.25 of 1983, Transfer of Land Form signed by the Senior Resident Magistrate as for and on behalf of Wanguhu David as per the Order made in Senior Resident Magistrate Court Case No.25 of 1983, Fee receipts from Department of Lands dated 11/01/1984 for Title Number Lari Kijabe/194 for Kshs.125 and Fee Receipts from Department of Lands dated 11/01/1984 for Title Number Lari/Kijabe/194 for Kshs.685, a copy of the green card search dated 1/11/2016.
i. THAT the annexed Memorandum of Appeal be deemed as duly filed upon payment of the requisite court fees.
j. THAT the costs of this application be in the cause.
2. The Application was supported by the grounds on the face of the application and on the sworn Affidavit of FRANCIS KIARIE MANYARA who stated that the intended Appellant was aggrieved with the Rulings dated 7/02/2024 and 12/06/2024 and the Certificate of Confirmation of Grant dated 14/11/2024 in Succession Cause No. 104 of 2017 at Limuru Lower Court.
3. The Applicant being dissatisfied with the whole ruling intends to file an appeal against the Rulings as it has occasioned great injustice to him; therefore securing funds on the 3/10/2022 he filed the instant application;
4. The parties were directed to canvass the application by way of written submissions; hereunder is a summary of the parties rival submissions;
APPLICANT’S CASE
5. The Applicant submitted that the delay was occasioned by the withdrawal of the Memorandum of Appeal due to procedural defects requiring prior leave of the Court. That the delay was not deliberate but arose from the need to comply with due legal process.
6. The outgoing advocate had refused and or neglected to sign the consent for change of representation necessitating this application for leave.
7. That the intended appeal raises fundamental legal issues including the trial courts lack of jurisdiction and erroneous exclusion of contested property from the estate distribution.
8. The trial court had ruled that the contested property did not form part of the estate yet it had been included it for distribution; The Respondents failed to provide documentary evidence explaining how the property was transferred. The trial court denied the Applicants witnesses the opportunity to testify on this critical issue.
9. That the delay was not inordinate as the application was brought at the earliest time as was practicably possible. It was the Applicant’s case that unless the orders sought were granted he would suffer irreparable loss and the appeal would be rendered nugatory.
RESPONDENT’S CASE
10. The application was opposed and the Respondent argued that the application is based ………
11. The Respondent urged the court to dismiss the application with costs to the Respondent.
ISSUES FOR DETERMINATION
12. Having considered the Application, Replying Affidavit and the written submissions this court frames the following issue for determination;
a. Whether the Applicant should be granted leave to file appeal out of time;
ANALYSIS
13. The applicable law is found under Section 79G of the Civil Procedure Act which grants the court powers to enlarge time in which to file an appeal. Section 79G of the Civil Procedure Act provides as follows 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.”
14. The principles that aid Courts in exercising the discretion as to whether to extend time to file an appeal out of time were suggested by the Court of Appeal in Thuita Mwangi V Kenya Airways Ltd [2003] eKLR. They include the following:-
(i) The period of delay;
ii) The reason for the delay;
iii) The argue-ability of the appeal;
iv) The degree of prejudice which could be suffered by the if Respondent the extension is granted;
15. On the issue of period of delay it is noted that the Respondent on 13/06/2018 filed a claim against the Applicant in Thika CMCC NO. 485 OF 2018 for Kshs. 518,440/=. An ex-parte judgment was entered on 2/01/2019 causing the Applicant to file his application to set the said judgment aside on 11/09/2019. In its ruling dated 3/08/2022, the trial court dismissed the Applicant’s Preliminary Objection.
16. Being aggrieved with the decision, the Applicant filed this application seeking leave to appeal out of time against the decision dated 3/10/2022.The Applicant annexed the impugned ruling that was delivered on 3/08/2022 to his application seeking leave to appeal out of time which was filed on 3/10/2022 and it is noted that the period of delay translates to a period of two (2) months; There are legions of authorities that have found a period of four (4) months not to be inordinate; herein the period of delay translates to two months which period this court is satisfied cannot be deemed as inordinate.
17. The reason for the delay advanced by the Applicant was the need to adhere to the legal procedures. A request had been made to the previous advocates on record for consent to the change of advocates. The said firm of advocates having failed and or neglected to sign the necessary consent for change of representation the applicant was compelled to file an application seeking for the courts leave to come on record.
18. The need to look for alternative counsel to prosecute the appeal; the reasons given for the delay, the first one being finances, the second one being……………; this court is satisfied that the Applicant has given a reasonable and satisfactory explanation given for the delay.
19. On the arguability of the Appeal the Applicant attached a copy of the impugned Ruling dated …………………and a copy of the Draft Memorandum of Appeal to his application. It is noted that the trial court found that the Applicant had been properly served with the pleadings. And after the trial court perused the Draft Memorandum of Appeal also found that it raised arguable issues to warrant the granting of the orders sought.
20. The main issue is jurisdiction of the trial court and after perusal of the impugned Ruling in the Draft Memorandum of Appeal this court is satisfied that the intended appeal on the issue of jurisdiction and of fair trial raises triable issues; this a fundamental right that the trial court may have disregarded; for those reasons this court is satisfied that the Applicant has an arguable appeal.
21. On the issue of security , the Court has noted that the Applicant has already complied with this condition when seeking for orders for stay of execution.
FINDINGS AND DETRMINATION
22. For those reasons this court makes the following findings and determination;
(i) The application is found to have merit and it is hereby allowed
(ii) Leave to appeal out of time is hereby granted; time to file the appeal is hereby enlarged by forty-five (45) days from the date hereof;
(iii) The Record of Appeal be filed and served within Forty-five (45) days hereof. In default the orders shall stand vacated.
(iv) The Applicant shall bear the costs of this application.
Orders Accordingly.
DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 27 TH DAY OF FEBRUARY, 2026
A. MSHILA
JUDGE
In the presence of;
Sanja – Court Assistant
Okumu - for the Applicant
Masaviru - for the Respondent
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