1. The Appellant’s notice of motion dated 4th April, 2025 is expressed to be brought under Sections 1A, 3, 3A, 79(G) and 63(e) of the Civil Procedure Act, Order 42 Rules 6(2), Order 51 Rule 1 of the Civil Procedure Rules, and all other enabling provisions of the law and seeks the following orders:
a. [Spent].
b. [Spent].
c. [Spent].
d. THAT this Honourable Court be pleased to grant the Applicant leave to lodge an appeal out of time against the decision delivered on 12th February, 2025 in Nyando Magistrate’s Court Succession Cause No. 229 of 2018.
e. THAT upon grant of leave to appeal out of time, the memorandum of appeal lodged herein be deemed as duly filed.
f. THAT this Honourable Court be pleased to stay the execution of the ruling in Nyando Magistrate’s Court Succession Cause No. 229 of 2018 pending the hearing and determination of the Appeal.
g. THAT this Honourable Court be pleased to issue any order it deems mete and just in the circumstances.
h. THAT the costs of and incidental to this Application be costs in the intended Appeal.
2. The grounds upon which the motion is premised are that the Applicant intends to lodge an appeal before this Honourable Court against the ruling delivered in Nyando Magistrate’s Court Succession Cause No. 229 of 2018 on 12th February, 2025. The Applicant avers that the delay in filing the intended appeal was occasioned by honest and excusable circumstances beyond their control, and thus should not be held against them.
3. The motion is further grounded on the fact that the intended appeal raises pertinent and triable issues worthy of consideration by this Honourable Court, and that it is in the broader interest of justice that the orders sought be granted. The Applicant contends that unless a stay of execution is issued, the application and the intended appeal will be rendered nugatory, thereby defeating the ends of justice.
4. Additionally, the Applicant asserts that they stand to suffer great prejudice if the orders sought are not granted. Conversely, no prejudice will be occasioned to the Respondent if the Court allows the application. It is therefore in the interest of justice and fairness that this Honourable Court exercises its discretion in favour of the Applicant and grants the orders sought.
5. The application is supported by the affidavit of Robert Maua, Advocate, sworn on 7th April, 2025 in which he deposes that the Applicant had filed an application before the trial court seeking the revocation or annulment of a grant issued to the Respondent, which was determined by a ruling dated 12th February, 2025. He avers that on the date scheduled for delivery of the ruling, the Honourable Magistrate was not sitting owing to a transfer, and he was informed at the court registry that the ruling would be delivered on notice. However, no such notice was ever issued, prompting him to make several follow-ups at the registry and through the e-filing portal. He has annexed a letter dated 13th March, 2025 to support this position.
6. Counsel further deposes that despite these efforts, it was only on 3rd April, 2025 that he discovered the ruling had been uploaded on the e-filing portal under an incorrect section rather than the designated “court decisions” column. Upon perusing the ruling and sharing it with the Applicant, the decision was made to lodge an appeal on the basis that the ruling contains errors in law and fact and raises triable issues. He explains that although the statutory period for filing an appeal has lapsed, the delay was neither intentional nor inordinate but was occasioned by the circumstances surrounding the delayed discovery of the ruling.
7. The deponent further states that the intended appeal has high chances of success and that the Respondent will not suffer any prejudice if the application is allowed. He maintains that the application has been brought in good faith and in the interest of justice, and urges the Court to grant orders for stay of execution as well as leave to file the appeal out of time pending the hearing and determination of the intended appeal.
8. In opposing the application, the Respondent, in the replying affidavit sworn on 30th April 2025, deposes that the application is incompetent, bad in law, fatally defective, frivolous, vexatious and an abuse of the court process and ought to be dismissed.
9. The Respondent states that the court had issued a ruling date of 12th February, 2025 in the presence of the advocates for the parties, and that the ruling was delivered as scheduled in open court, though the parties were absent. He further avers that the ruling was uploaded on the e-filing portal on the same date, 12th February, 2025, and has annexed a copy in support of this position.
10. The Respondent further challenges the Applicant’s claim regarding attempts to obtain the ruling, contending that the alleged letter dated 13th March, 2025 is not stamped by the Nyando Law Courts registry and was not uploaded on the court’s e-filing system. He maintains that the delay in filing the appeal is deliberate, inexcusable and an abuse of the court process as it is time barred. The Respondent therefore prays for the dismissal of the application in its entirety.
11. The application proceeded by way of written submissions.
12. In his written submissions, the Applicant contends that the delay in filing the appeal is excusable and beyond the Applicant’s control, that the intended appeal raises triable issues of law and fact and that the Applicant stands to suffer prejudice if the orders sought are not granted.
13. On the issue of delay, reliance is placed on the principles governing extension of time as set out in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others and Fakir Mohamed v Joseph Mugambi & 2 Others [2014] eKLR, emphasizing that the court’s discretion must be exercised judicially, taking into account the length and explanation of delay, arguability of the appeal and prejudice to the opposing party.
14. It is submitted by the Applicant that the ruling was discovered after diligent follow-up and was allegedly uploaded in an incorrect section of the e-filing system, thereby explaining the delay, which is said not to be inordinate as contemplated in Utalii Transport Company Limited & 3 Others v NIC Bank Limited & Another [2014] eKLR.
15. On arguability, the Applicant submits that the draft memorandum of appeal raises pertinent and triable issues relating to the distribution of the deceased’s estate, which warrant determination by the Court.
16. On prejudice, it is contended that the Respondent has not demonstrated any prejudice in his replying affidavit and that in succession matters the overriding consideration is the fair and just distribution of the estate. Reliance is placed on the case of Touring Cars (K) Ltd & Another v Ashok Kumar N. Mankanji, Civil Application No. 78 of 1998, for the proposition that absence of prejudice is a relevant factor in the exercise of judicial discretion.
17. The Applicant urges the Court to exercise its discretion in his favour of and allow the application as prayed in the interests of justice.
18. On his part, the Respondent submits that the Applicant’s motion seeking leave to appeal out of time is not merited and ought to be dismissed. He relies on Section 79G of the Civil Procedure Act, which requires appeals from subordinate courts to be filed within 30 days, subject to the Court’s discretion to admit an appeal out of time only where good and sufficient cause for delay is demonstrated. He further relies on the principles set out in Nicholas Kiptoo Arap Korir Salat emphasizing that extension of time is an equitable remedy, not a right, and is only available upon satisfactory explanation of delay.
19. The Respondent contends that the Applicant has failed to provide a satisfactory explanation for the delay. He relies on the Applicant’s own affidavit, asserting that the ruling was delivered on 12th February, 2025 and uploaded on the e-filing platform the same day at 1804hrs. He further disputes the alleged follow-up efforts, arguing that the letter dated 13th March, 2025 marked is not stamped by the court registry and was not uploaded on the e-filing system, thereby casting doubt on its authenticity.
20. The Respondent also submits that the delay of 51 days beyond the statutory period is inordinate and unjustified, relying on authorities of Edith Gichugu Koine v Stephen Njagi Thoithi, [2014] KECA 485 (KLR), Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 and Gerald M’limbine v Joseph Kangangi [2009] eKLR, which emphasize that unexplained or inordinate delay disentitles an Applicant to equitable relief. He argues that the Applicant has not met the threshold required under Section 79G of the Civil Procedure Act.
21. On prejudice, the Respondent submits that allowing the application would undermine the principle of finality in litigation and prejudice his vested right in the judgement of the lower court. He contends that he would also suffer continued uncertainty and unnecessary costs if the appeal is admitted out of time.
22. In conclusion, the Respondent maintains that the Applicant has failed to demonstrate good and sufficient cause for the delay, that the delay is inordinate and unjustified and that the application lacks merit. He therefore urges the Court to dismiss the motion with costs.
23. Having considered the application, the parties’ affidavits, the rival submissions and the record, the Court identifies the following issues for determination:
a. Whether the Applicant has offered a satisfactory and reasonable explanation for the delay in filing the appeal out of time, and whether the delay is excusable within the meaning of Section 79G of the Civil Procedure Act and the applicable principles governing extension of time.
b. Whether the appeal is arguable and raises triable issues warranting consideration by this Court and whether it is frivolous or discloses no issues fit for determination on appeal.
c. Whether the Respondent stands to suffer prejudice if the application for leave to appeal out of time and stay of execution is allowed, as opposed to any prejudice the Applicant may suffer if the orders sought are declined, bearing in mind the competing interests of finality in litigation and the right of appeal.
d. Whether the Court should exercise its discretion in favour of the Applicant and grant the orders sought, including leave to appeal out of time and stay of execution, together with any consequential orders.
e. What is the appropriate order as to costs of the application.
24. I will proceed to address and determine the issues.
25. The Court has carefully considered the first issue, namely whether the Applicant has offered a satisfactory and reasonable explanation for the delay in filing the appeal. The Applicant’s explanation is that the ruling was not readily accessible as expected through the e-filing system and that despite diligent follow-up at the registry, the same was only discovered on 3rd April, 2025.
26. The Respondent, on the other hand, contests this explanation and points to the absence of a registry stamp on the letter dated 13th March, 2025 and the assertion that the ruling was uploaded on 12th February, 2025.
27. In determining this issue, the Court is guided by the well-established principles on extension of time set out in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, where the Supreme Court stated as follows:
“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.”
28. The Court further emphasized that a party must demonstrate, among other things, a reasonable explanation for the delay.
29. The Court is also guided by the principle in Fakir Mohamed v Joseph Mugambi & 2 Others [2005] eKLR, where the Court of Appeal held that the relevant factors include:
“…..the length of the delay, the reason for the delay, the chances of the appeal succeeding and the degree of prejudice to the Respondent.”
30. Applying these principles, the Court finds that although the delay of approximately 51 days is not insignificant, the explanation tendered by the Applicant is plausible and consistent with administrative inefficiencies that may arise in the e-filing system.
31. On the issue of the letter dated 13th March, 2025 lacking a registry stamp, the Court notes that while formal stamping of correspondence is desirable for evidential certainty, it is not uncommon in practice for litigants and advocates to communicate with court registries through letters, emails or physical delivery, particularly in busy court stations. The absence of a stamp, in the circumstances of this case, is not fatal where the Applicant has otherwise demonstrated efforts to trace the ruling and there is no conclusive evidence that the communication was fabricated. The Court therefore finds that the delay is sufficiently explained and excusable.
32. On the second issue, whether the appeal is arguable, the Court is not required at this stage to determine the merits of the appeal with finality. It is sufficient if the intended appeal raises at least one bona fide point deserving consideration.
33. In Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) [2015] eKLR, the Court held that an arguable appeal is not one that must succeed, but one that is not frivolous. Similarly, in Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, the Court of Appeal stated that an arguable appeal is one that raises at least a single bona fide issue that deserves consideration by the Court.
34. In the present case, the memorandum of appeal raises issues relating to the distribution of the estate in the succession cause and alleged errors of law and fact in the impugned ruling. Without delving into the merits, the Court is satisfied that these are not frivolous matters and are proper issues for appellate interrogation.
35. On the third issue, whether the Respondent will suffer prejudice, the Court notes that the Respondent has largely relied on the principle of finality in litigation and the assertion of a vested right in the ruling of the lower court. However, no specific or substantial prejudice beyond ordinary inconvenience has been demonstrated.
36. In contrast, the prejudice to the Applicant, who risks being shut out of the seat of justice on account of procedural delay, is significant.
37. The Court is guided by the principle that the right of appeal should not be lightly denied where the opposing party can be compensated by costs and where no irreparable prejudice is demonstrated. Accordingly, the Court finds that the balance of prejudice tilts in favour of allowing the Applicant’s motion.
38. On the fourth issue, the exercise of discretion, the Court is reminded that judicial discretion must be exercised to advance substantive justice. In Mbogo v Shah [1968] EA 93, the Court held that discretion should not be exercised to defeat justice but to serve it. Further, in succession matters, courts are particularly enjoined to ensure that disputes affecting estates are determined on merit rather than on technicalities.
39. Taking into account all the foregoing, the Court is persuaded that this is a proper case for the exercise of its discretion in favour of the Applicant. The explanation for delay, though contested, is reasonably plausible; the intended appeal is arguable; and no undue prejudice has been demonstrated by the Respondent.
40. In the ultimate, I allow the application in terms of prayers (d), (e) and (f) thereof and order that the memorandum of appeal be served within 7 days from the date hereof.
41. On costs, the Court notes that costs ordinarily follow the event but remain in the discretion of the Court under Section 27 of the Civil Procedure Act. Given the nature of the application and the interests of justice in allowing the matter to be ventilated on appeal, the Court finds it appropriate to order that costs of the application shall abide the outcome of the intended appeal.
42. The matter to be mentioned for directions on 23rd July, 2026. A mention notice to be served.
DELIVERED (virtually), DATED & SIGNED this 17th day of April, 2026.
JOE M. OMIDO.
JUDGE
FOR APPLICANT: No appearance.
FOR RESPONDENT: Ms. Ofwa.
COURT ASSISTANT: Mr. Juma.
a. [Spent].
b. [Spent].
c. [Spent].
d. THAT this Honourable Court be pleased to grant the Applicant leave to lodge an appeal out of time against the decision delivered on 12th February, 2025 in Nyando Magistrate’s Court Succession Cause No. 229 of 2018.
e. THAT upon grant of leave to appeal out of time, the memorandum of appeal lodged herein be deemed as duly filed.
f. THAT this Honourable Court be pleased to stay the execution of the ruling in Nyando Magistrate’s Court Succession Cause No. 229 of 2018 pending the hearing and determination of the Appeal.
g. THAT this Honourable Court be pleased to issue any order it deems mete and just in the circumstances.
h. THAT the costs of and incidental to this Application be costs in the intended Appeal.
2. The grounds upon which the motion is premised are that the Applicant intends to lodge an appeal before this Honourable Court against the ruling delivered in Nyando Magistrate’s Court Succession Cause No. 229 of 2018 on 12th February, 2025. The Applicant avers that the delay in filing the intended appeal was occasioned by honest and excusable circumstances beyond their control, and thus should not be held against them.
3. The motion is further grounded on the fact that the intended appeal raises pertinent and triable issues worthy of consideration by this Honourable Court, and that it is in the broader interest of justice that the orders sought be granted. The Applicant contends that unless a stay of execution is issued, the application and the intended appeal will be rendered nugatory, thereby defeating the ends of justice.
4. Additionally, the Applicant asserts that they stand to suffer great prejudice if the orders sought are not granted. Conversely, no prejudice will be occasioned to the Respondent if the Court allows the application. It is therefore in the interest of justice and fairness that this Honourable Court exercises its discretion in favour of the Applicant and grants the orders sought.
5. The application is supported by the affidavit of Robert Maua, Advocate, sworn on 7th April, 2025 in which he deposes that the Applicant had filed an application before the trial court seeking the revocation or annulment of a grant issued to the Respondent, which was determined by a ruling dated 12th February, 2025. He avers that on the date scheduled for delivery of the ruling, the Honourable Magistrate was not sitting owing to a transfer, and he was informed at the court registry that the ruling would be delivered on notice. However, no such notice was ever issued, prompting him to make several follow-ups at the registry and through the e-filing portal. He has annexed a letter dated 13th March, 2025 to support this position.
6. Counsel further deposes that despite these efforts, it was only on 3rd April, 2025 that he discovered the ruling had been uploaded on the e-filing portal under an incorrect section rather than the designated “court decisions” column. Upon perusing the ruling and sharing it with the Applicant, the decision was made to lodge an appeal on the basis that the ruling contains errors in law and fact and raises triable issues. He explains that although the statutory period for filing an appeal has lapsed, the delay was neither intentional nor inordinate but was occasioned by the circumstances surrounding the delayed discovery of the ruling.
7. The deponent further states that the intended appeal has high chances of success and that the Respondent will not suffer any prejudice if the application is allowed. He maintains that the application has been brought in good faith and in the interest of justice, and urges the Court to grant orders for stay of execution as well as leave to file the appeal out of time pending the hearing and determination of the intended appeal.
8. In opposing the application, the Respondent, in the replying affidavit sworn on 30th April 2025, deposes that the application is incompetent, bad in law, fatally defective, frivolous, vexatious and an abuse of the court process and ought to be dismissed.
9. The Respondent states that the court had issued a ruling date of 12th February, 2025 in the presence of the advocates for the parties, and that the ruling was delivered as scheduled in open court, though the parties were absent. He further avers that the ruling was uploaded on the e-filing portal on the same date, 12th February, 2025, and has annexed a copy in support of this position.
10. The Respondent further challenges the Applicant’s claim regarding attempts to obtain the ruling, contending that the alleged letter dated 13th March, 2025 is not stamped by the Nyando Law Courts registry and was not uploaded on the court’s e-filing system. He maintains that the delay in filing the appeal is deliberate, inexcusable and an abuse of the court process as it is time barred. The Respondent therefore prays for the dismissal of the application in its entirety.
11. The application proceeded by way of written submissions.
12. In his written submissions, the Applicant contends that the delay in filing the appeal is excusable and beyond the Applicant’s control, that the intended appeal raises triable issues of law and fact and that the Applicant stands to suffer prejudice if the orders sought are not granted.
13. On the issue of delay, reliance is placed on the principles governing extension of time as set out in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others and Fakir Mohamed v Joseph Mugambi & 2 Others [2014] eKLR, emphasizing that the court’s discretion must be exercised judicially, taking into account the length and explanation of delay, arguability of the appeal and prejudice to the opposing party.
14. It is submitted by the Applicant that the ruling was discovered after diligent follow-up and was allegedly uploaded in an incorrect section of the e-filing system, thereby explaining the delay, which is said not to be inordinate as contemplated in Utalii Transport Company Limited & 3 Others v NIC Bank Limited & Another [2014] eKLR.
15. On arguability, the Applicant submits that the draft memorandum of appeal raises pertinent and triable issues relating to the distribution of the deceased’s estate, which warrant determination by the Court.
16. On prejudice, it is contended that the Respondent has not demonstrated any prejudice in his replying affidavit and that in succession matters the overriding consideration is the fair and just distribution of the estate. Reliance is placed on the case of Touring Cars (K) Ltd & Another v Ashok Kumar N. Mankanji, Civil Application No. 78 of 1998, for the proposition that absence of prejudice is a relevant factor in the exercise of judicial discretion.
17. The Applicant urges the Court to exercise its discretion in his favour of and allow the application as prayed in the interests of justice.
18. On his part, the Respondent submits that the Applicant’s motion seeking leave to appeal out of time is not merited and ought to be dismissed. He relies on Section 79G of the Civil Procedure Act, which requires appeals from subordinate courts to be filed within 30 days, subject to the Court’s discretion to admit an appeal out of time only where good and sufficient cause for delay is demonstrated. He further relies on the principles set out in Nicholas Kiptoo Arap Korir Salat emphasizing that extension of time is an equitable remedy, not a right, and is only available upon satisfactory explanation of delay.
19. The Respondent contends that the Applicant has failed to provide a satisfactory explanation for the delay. He relies on the Applicant’s own affidavit, asserting that the ruling was delivered on 12th February, 2025 and uploaded on the e-filing platform the same day at 1804hrs. He further disputes the alleged follow-up efforts, arguing that the letter dated 13th March, 2025 marked is not stamped by the court registry and was not uploaded on the e-filing system, thereby casting doubt on its authenticity.
20. The Respondent also submits that the delay of 51 days beyond the statutory period is inordinate and unjustified, relying on authorities of Edith Gichugu Koine v Stephen Njagi Thoithi, [2014] KECA 485 (KLR), Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 and Gerald M’limbine v Joseph Kangangi [2009] eKLR, which emphasize that unexplained or inordinate delay disentitles an Applicant to equitable relief. He argues that the Applicant has not met the threshold required under Section 79G of the Civil Procedure Act.
21. On prejudice, the Respondent submits that allowing the application would undermine the principle of finality in litigation and prejudice his vested right in the judgement of the lower court. He contends that he would also suffer continued uncertainty and unnecessary costs if the appeal is admitted out of time.
22. In conclusion, the Respondent maintains that the Applicant has failed to demonstrate good and sufficient cause for the delay, that the delay is inordinate and unjustified and that the application lacks merit. He therefore urges the Court to dismiss the motion with costs.
23. Having considered the application, the parties’ affidavits, the rival submissions and the record, the Court identifies the following issues for determination:
a. Whether the Applicant has offered a satisfactory and reasonable explanation for the delay in filing the appeal out of time, and whether the delay is excusable within the meaning of Section 79G of the Civil Procedure Act and the applicable principles governing extension of time.
b. Whether the appeal is arguable and raises triable issues warranting consideration by this Court and whether it is frivolous or discloses no issues fit for determination on appeal.
c. Whether the Respondent stands to suffer prejudice if the application for leave to appeal out of time and stay of execution is allowed, as opposed to any prejudice the Applicant may suffer if the orders sought are declined, bearing in mind the competing interests of finality in litigation and the right of appeal.
d. Whether the Court should exercise its discretion in favour of the Applicant and grant the orders sought, including leave to appeal out of time and stay of execution, together with any consequential orders.
e. What is the appropriate order as to costs of the application.
24. I will proceed to address and determine the issues.
25. The Court has carefully considered the first issue, namely whether the Applicant has offered a satisfactory and reasonable explanation for the delay in filing the appeal. The Applicant’s explanation is that the ruling was not readily accessible as expected through the e-filing system and that despite diligent follow-up at the registry, the same was only discovered on 3rd April, 2025.
26. The Respondent, on the other hand, contests this explanation and points to the absence of a registry stamp on the letter dated 13th March, 2025 and the assertion that the ruling was uploaded on 12th February, 2025.
27. In determining this issue, the Court is guided by the well-established principles on extension of time set out in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, where the Supreme Court stated as follows:
“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.”
28. The Court further emphasized that a party must demonstrate, among other things, a reasonable explanation for the delay.
29. The Court is also guided by the principle in Fakir Mohamed v Joseph Mugambi & 2 Others [2005] eKLR, where the Court of Appeal held that the relevant factors include:
“…..the length of the delay, the reason for the delay, the chances of the appeal succeeding and the degree of prejudice to the Respondent.”
30. Applying these principles, the Court finds that although the delay of approximately 51 days is not insignificant, the explanation tendered by the Applicant is plausible and consistent with administrative inefficiencies that may arise in the e-filing system.
31. On the issue of the letter dated 13th March, 2025 lacking a registry stamp, the Court notes that while formal stamping of correspondence is desirable for evidential certainty, it is not uncommon in practice for litigants and advocates to communicate with court registries through letters, emails or physical delivery, particularly in busy court stations. The absence of a stamp, in the circumstances of this case, is not fatal where the Applicant has otherwise demonstrated efforts to trace the ruling and there is no conclusive evidence that the communication was fabricated. The Court therefore finds that the delay is sufficiently explained and excusable.
32. On the second issue, whether the appeal is arguable, the Court is not required at this stage to determine the merits of the appeal with finality. It is sufficient if the intended appeal raises at least one bona fide point deserving consideration.
33. In Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) [2015] eKLR, the Court held that an arguable appeal is not one that must succeed, but one that is not frivolous. Similarly, in Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, the Court of Appeal stated that an arguable appeal is one that raises at least a single bona fide issue that deserves consideration by the Court.
34. In the present case, the memorandum of appeal raises issues relating to the distribution of the estate in the succession cause and alleged errors of law and fact in the impugned ruling. Without delving into the merits, the Court is satisfied that these are not frivolous matters and are proper issues for appellate interrogation.
35. On the third issue, whether the Respondent will suffer prejudice, the Court notes that the Respondent has largely relied on the principle of finality in litigation and the assertion of a vested right in the ruling of the lower court. However, no specific or substantial prejudice beyond ordinary inconvenience has been demonstrated.
36. In contrast, the prejudice to the Applicant, who risks being shut out of the seat of justice on account of procedural delay, is significant.
37. The Court is guided by the principle that the right of appeal should not be lightly denied where the opposing party can be compensated by costs and where no irreparable prejudice is demonstrated. Accordingly, the Court finds that the balance of prejudice tilts in favour of allowing the Applicant’s motion.
38. On the fourth issue, the exercise of discretion, the Court is reminded that judicial discretion must be exercised to advance substantive justice. In Mbogo v Shah [1968] EA 93, the Court held that discretion should not be exercised to defeat justice but to serve it. Further, in succession matters, courts are particularly enjoined to ensure that disputes affecting estates are determined on merit rather than on technicalities.
39. Taking into account all the foregoing, the Court is persuaded that this is a proper case for the exercise of its discretion in favour of the Applicant. The explanation for delay, though contested, is reasonably plausible; the intended appeal is arguable; and no undue prejudice has been demonstrated by the Respondent.
40. In the ultimate, I allow the application in terms of prayers (d), (e) and (f) thereof and order that the memorandum of appeal be served within 7 days from the date hereof.
41. On costs, the Court notes that costs ordinarily follow the event but remain in the discretion of the Court under Section 27 of the Civil Procedure Act. Given the nature of the application and the interests of justice in allowing the matter to be ventilated on appeal, the Court finds it appropriate to order that costs of the application shall abide the outcome of the intended appeal.
42. The matter to be mentioned for directions on 23rd July, 2026. A mention notice to be served.
DELIVERED (virtually), DATED & SIGNED this 17th day of April, 2026.
JOE M. OMIDO.
JUDGE
FOR APPLICANT: No appearance.
FOR RESPONDENT: Ms. Ofwa.
COURT ASSISTANT: Mr. Juma.