RULING
1. Before this Court is the Respondent/Applicant’s Notice of Motion dated 6th August 2025. The application is expressed to be brought under Order 43 Rule 1(3) of the Civil Procedure Rules, sections 75 of the Civil Procedure Act, section 7 of the Appellate Jurisdiction Act, Rules 59, 63 and 73 of the Probate and Administration Rules, sections 47, 48 and 50 of the Law of Succession Act, Articles 10, 22, 23, 27, 47, 48, 50, 159, 165 and 259 of the Constitution and all enabling provisions of the law.
2. The Applicant seeks, orders that this Court extends time within which he may file and/or lodge a notice of appeal and/or appeal against the ruling delivered on 20th May 2025; that the Court admits and grants leave to file and/or lodge the intended appeal; that the notice of appeal annexed to the application be deemed as duly filed and lodged; and that costs of the application abide the intended appeal.
3. The application is supported by the affidavit of Benjamin Onsongo Matonda sworn on 6th August 2025. The Applicant avers that this succession cause concerns the estate of Joel Onwonga Nyagechanga alias Joel Onwonga Nyage, deceased. He states that this Court delivered its ruling on 20th May 2025 and that he was unaware that the ruling was due for delivery on that date. He further states that he was unwell for a long period and was therefore unable to give his advocates instructions to lodge an appeal within the prescribed time.
4. The Applicant states that he has since instructed his advocates to pursue the intended appeal. He contends that the intended appeal raises serious issues of law and fact and that unless leave and extension of time are granted, he will be shut out from exercising his right of appeal.
5. The application is opposed by the Objectors/Respondents through the replying affidavit of Tabitha Mong’ina Joel sworn on 22nd September 2025. She deposes that the application is frivolous, vexatious and an abuse of the court process. She states that the ruling sought to be appealed against was delivered on 20th May 2025 and that the Applicant had the prescribed period within which to lodge a notice of appeal but deliberately failed to do so.
6. The Respondents contend that the Applicant has not placed before Court any justifiable reason for the delay. They state that the medical documents relied upon by the Applicant show that he was admitted at Coptic Hospital on 9th January 2025 and discharged on 22nd January 2025, several months before the ruling was delivered. They therefore argue that the Applicant’s illness cannot explain the failure to take steps after 20th May 2025.
7. The Respondents further contend that the Applicant was represented by counsel when the ruling was delivered, and that the allegation that he was unaware of the ruling cannot stand. They also argue that the intended appeal has no chance of success because the grant had been issued to Walter Kerosi Joel, who is now deceased, and such a grant cannot be transferred to another person.
8. Parties filed written submissions which I have considered. The Applicant submitted that the Court has discretion to extend time and that the delay was explained by his illness. He relied on authorities on enlargement of time and urged the Court to lean in favour of the right of appeal. The Respondents submitted that extension of time is not automatic; that delay must be satisfactorily explained; that the Applicant failed to annex a draft memorandum of appeal; and that the application was intended to delay the final administration of the estate.
9. I have considered the application, the supporting affidavit, the replying affidavit, the rival submissions and the authorities cited. In my view, the issues that arise for determination are:
a. Whether the Applicant has laid a sufficient basis for extension of time and leave to pursue the intended appeal; and
b. What orders should issue.
10. The principles governing extension of time are now settled. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court stated that extension of time is not a right of a party but an equitable remedy available only to a deserving party at the discretion of the court. The applicant bears the burden of laying a basis to the satisfaction of the court. The court considers, among other factors, the length of the delay, the reason for the delay, whether the intended appeal is arguable, the prejudice to the respondent, the importance of compliance with timelines and, in appropriate cases, the public interest.
11. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, the Court of Appeal stated that in exercising discretion to extend time, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, and the degree of prejudice to the respondent.
12. In succession matters, the Court must also balance the right of a party to pursue an appeal against the need for finality in the administration of estates. Succession disputes concern the property of deceased persons and affect beneficiaries who are entitled to have the estate administered without undue delay.
13. The ruling sought to be appealed against was delivered on 20th May 2025. The present application was filed on 6th August 2025. The notice of appeal ought to have been lodged within the time prescribed under the Court of Appeal Rules. By the time the present application was filed, the prescribed period had long lapsed.
14. The principal explanation offered by the Applicant is illness. I have considered the medical documents annexed to the application. They show that the Applicant was admitted at Coptic Hospital on 9th January 2025 and discharged on 22nd January 2025. That was about four months before the ruling was delivered on 20th May 2025. No further medical evidence has been placed before this Court to show that after the date of delivery of the ruling, the Applicant was incapacitated or otherwise unable to communicate with his advocates or give instructions.Illness may, in a proper case, constitute a sufficient explanation for delay. However, where illness is relied upon, the court must be satisfied that the illness affected the applicant’s ability to act within time. In the present case, the material before Court does not connect the Applicant’s admission in January 2025 with his failure to lodge the notice of appeal after 20th May 2025. The explanation therefore does not sufficiently account for the delay.
15. The Applicant also states that he was unaware that the ruling was due for delivery. However, he was represented by counsel in the proceedings. A party who is represented by an advocate is deemed to act through that advocate. No affidavit has been filed by the Applicant’s advocate to explain whether counsel was absent, whether the ruling date was not communicated, or whether there was any other circumstance beyond the Applicant’s control that prevented timely action.
16. The Court must also consider whether the intended appeal is arguable. An arguable appeal is not one that must necessarily succeed, but one that raises at least one bona fide point worthy of consideration by the appellate court. This principle was stated in Kenya Commercial Bank Limited v Nicholas Ombija [2009] eKLR.
17. In the present application, the Applicant did not annex a draft memorandum of appeal. The Court has only been told, in general terms, that the intended appeal raises serious issues of law and fact. Without a draft memorandum of appeal or a clear statement of the proposed grounds, the Court is unable to assess whether the intended appeal is arguable.
18. The ruling of 20th May 2025 revoked the grant issued on 8th February 2017 and the certificate of confirmation dated 21st May 2019. The Court also ordered that a fresh application for grant be filed, that a new official search for the relevant parcel be availed, that the area chief issue a fresh letter identifying the survivors and beneficiaries of the deceased, and that the land registrar and county surveyor visit the land and file a report on occupation and status.
19. Those orders were made for purposes of regularizing the administration of the estate and ensuring that the correct estate property and beneficiaries are ascertained. The Applicant has not shown that the orders were incapable of being complied with, nor has he demonstrated, at this stage, the specific legal error intended to be pursued on appeal.
20. I have also considered the prejudice likely to be suffered by the parties. The estate has remained in court since 2015. The earlier grant was revoked because the Court found it necessary to have the estate administered afresh in accordance with the law. Granting the present application without a satisfactory explanation for delay would further postpone the process of administration and prejudice beneficiaries who are entitled to finality.
21. The right of appeal is important. However, it must be exercised within the framework of the law. Timelines are not cosmetic. They serve the important purpose of ensuring orderly administration of justice and finality in litigation. A party seeking the Court’s discretion must demonstrate diligence and candour.
22. I find that the Applicant has not satisfactorily explained the delay. I further find that the Applicant has not placed before Court sufficient material to demonstrate that the intended appeal is arguable. The balance of justice does not favour the reopening of timelines in the circumstances of this case.
23. Consequently, the Notice of Motion dated 6th August 2025 lacks merit and is hereby dismissed.
24. This is a family succession dispute, each party shall bear their own costs.
25. Mention on 29.6.26 before Hon. Justice Proff (Mr ) Sifuna for directions .
T.A ODERA
JUDGE
3.6.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 3RD DAY OF JUNE 2026 IN THE PRESENCE OF :
In the presence of:
Court Assistant:BUSIENEI
For the Applicant:Miss Nyaata Holding brief for Mr Ochwangi for the applicant
For the Objectors/Respondents:Mokaya for respodent
1. Before this Court is the Respondent/Applicant’s Notice of Motion dated 6th August 2025. The application is expressed to be brought under Order 43 Rule 1(3) of the Civil Procedure Rules, sections 75 of the Civil Procedure Act, section 7 of the Appellate Jurisdiction Act, Rules 59, 63 and 73 of the Probate and Administration Rules, sections 47, 48 and 50 of the Law of Succession Act, Articles 10, 22, 23, 27, 47, 48, 50, 159, 165 and 259 of the Constitution and all enabling provisions of the law.
2. The Applicant seeks, orders that this Court extends time within which he may file and/or lodge a notice of appeal and/or appeal against the ruling delivered on 20th May 2025; that the Court admits and grants leave to file and/or lodge the intended appeal; that the notice of appeal annexed to the application be deemed as duly filed and lodged; and that costs of the application abide the intended appeal.
3. The application is supported by the affidavit of Benjamin Onsongo Matonda sworn on 6th August 2025. The Applicant avers that this succession cause concerns the estate of Joel Onwonga Nyagechanga alias Joel Onwonga Nyage, deceased. He states that this Court delivered its ruling on 20th May 2025 and that he was unaware that the ruling was due for delivery on that date. He further states that he was unwell for a long period and was therefore unable to give his advocates instructions to lodge an appeal within the prescribed time.
4. The Applicant states that he has since instructed his advocates to pursue the intended appeal. He contends that the intended appeal raises serious issues of law and fact and that unless leave and extension of time are granted, he will be shut out from exercising his right of appeal.
5. The application is opposed by the Objectors/Respondents through the replying affidavit of Tabitha Mong’ina Joel sworn on 22nd September 2025. She deposes that the application is frivolous, vexatious and an abuse of the court process. She states that the ruling sought to be appealed against was delivered on 20th May 2025 and that the Applicant had the prescribed period within which to lodge a notice of appeal but deliberately failed to do so.
6. The Respondents contend that the Applicant has not placed before Court any justifiable reason for the delay. They state that the medical documents relied upon by the Applicant show that he was admitted at Coptic Hospital on 9th January 2025 and discharged on 22nd January 2025, several months before the ruling was delivered. They therefore argue that the Applicant’s illness cannot explain the failure to take steps after 20th May 2025.
7. The Respondents further contend that the Applicant was represented by counsel when the ruling was delivered, and that the allegation that he was unaware of the ruling cannot stand. They also argue that the intended appeal has no chance of success because the grant had been issued to Walter Kerosi Joel, who is now deceased, and such a grant cannot be transferred to another person.
8. Parties filed written submissions which I have considered. The Applicant submitted that the Court has discretion to extend time and that the delay was explained by his illness. He relied on authorities on enlargement of time and urged the Court to lean in favour of the right of appeal. The Respondents submitted that extension of time is not automatic; that delay must be satisfactorily explained; that the Applicant failed to annex a draft memorandum of appeal; and that the application was intended to delay the final administration of the estate.
9. I have considered the application, the supporting affidavit, the replying affidavit, the rival submissions and the authorities cited. In my view, the issues that arise for determination are:
a. Whether the Applicant has laid a sufficient basis for extension of time and leave to pursue the intended appeal; and
b. What orders should issue.
10. The principles governing extension of time are now settled. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court stated that extension of time is not a right of a party but an equitable remedy available only to a deserving party at the discretion of the court. The applicant bears the burden of laying a basis to the satisfaction of the court. The court considers, among other factors, the length of the delay, the reason for the delay, whether the intended appeal is arguable, the prejudice to the respondent, the importance of compliance with timelines and, in appropriate cases, the public interest.
11. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, the Court of Appeal stated that in exercising discretion to extend time, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, and the degree of prejudice to the respondent.
12. In succession matters, the Court must also balance the right of a party to pursue an appeal against the need for finality in the administration of estates. Succession disputes concern the property of deceased persons and affect beneficiaries who are entitled to have the estate administered without undue delay.
13. The ruling sought to be appealed against was delivered on 20th May 2025. The present application was filed on 6th August 2025. The notice of appeal ought to have been lodged within the time prescribed under the Court of Appeal Rules. By the time the present application was filed, the prescribed period had long lapsed.
14. The principal explanation offered by the Applicant is illness. I have considered the medical documents annexed to the application. They show that the Applicant was admitted at Coptic Hospital on 9th January 2025 and discharged on 22nd January 2025. That was about four months before the ruling was delivered on 20th May 2025. No further medical evidence has been placed before this Court to show that after the date of delivery of the ruling, the Applicant was incapacitated or otherwise unable to communicate with his advocates or give instructions.Illness may, in a proper case, constitute a sufficient explanation for delay. However, where illness is relied upon, the court must be satisfied that the illness affected the applicant’s ability to act within time. In the present case, the material before Court does not connect the Applicant’s admission in January 2025 with his failure to lodge the notice of appeal after 20th May 2025. The explanation therefore does not sufficiently account for the delay.
15. The Applicant also states that he was unaware that the ruling was due for delivery. However, he was represented by counsel in the proceedings. A party who is represented by an advocate is deemed to act through that advocate. No affidavit has been filed by the Applicant’s advocate to explain whether counsel was absent, whether the ruling date was not communicated, or whether there was any other circumstance beyond the Applicant’s control that prevented timely action.
16. The Court must also consider whether the intended appeal is arguable. An arguable appeal is not one that must necessarily succeed, but one that raises at least one bona fide point worthy of consideration by the appellate court. This principle was stated in Kenya Commercial Bank Limited v Nicholas Ombija [2009] eKLR.
17. In the present application, the Applicant did not annex a draft memorandum of appeal. The Court has only been told, in general terms, that the intended appeal raises serious issues of law and fact. Without a draft memorandum of appeal or a clear statement of the proposed grounds, the Court is unable to assess whether the intended appeal is arguable.
18. The ruling of 20th May 2025 revoked the grant issued on 8th February 2017 and the certificate of confirmation dated 21st May 2019. The Court also ordered that a fresh application for grant be filed, that a new official search for the relevant parcel be availed, that the area chief issue a fresh letter identifying the survivors and beneficiaries of the deceased, and that the land registrar and county surveyor visit the land and file a report on occupation and status.
19. Those orders were made for purposes of regularizing the administration of the estate and ensuring that the correct estate property and beneficiaries are ascertained. The Applicant has not shown that the orders were incapable of being complied with, nor has he demonstrated, at this stage, the specific legal error intended to be pursued on appeal.
20. I have also considered the prejudice likely to be suffered by the parties. The estate has remained in court since 2015. The earlier grant was revoked because the Court found it necessary to have the estate administered afresh in accordance with the law. Granting the present application without a satisfactory explanation for delay would further postpone the process of administration and prejudice beneficiaries who are entitled to finality.
21. The right of appeal is important. However, it must be exercised within the framework of the law. Timelines are not cosmetic. They serve the important purpose of ensuring orderly administration of justice and finality in litigation. A party seeking the Court’s discretion must demonstrate diligence and candour.
22. I find that the Applicant has not satisfactorily explained the delay. I further find that the Applicant has not placed before Court sufficient material to demonstrate that the intended appeal is arguable. The balance of justice does not favour the reopening of timelines in the circumstances of this case.
23. Consequently, the Notice of Motion dated 6th August 2025 lacks merit and is hereby dismissed.
24. This is a family succession dispute, each party shall bear their own costs.
25. Mention on 29.6.26 before Hon. Justice Proff (Mr ) Sifuna for directions .
T.A ODERA
JUDGE
3.6.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 3RD DAY OF JUNE 2026 IN THE PRESENCE OF :
In the presence of:
Court Assistant:BUSIENEI
For the Applicant:Miss Nyaata Holding brief for Mr Ochwangi for the applicant
For the Objectors/Respondents:Mokaya for respodent