' This ruling is in respect to the Application dated 7 th March 2025 wherein the Applicant seeks the following orders: -
SPENT
THAT the honourable Court be pleased to grant leave to file the Appeal out of time.
THAT upon granting prayers 1 and 2, there be an order restraining the Land Registrar Nyamira County from executing the Certificate of Grant of Confirmation (sic) issued by the trial court in Succession Cause No. E095 of 2022 by conducting an exercising boundary demarcation in North Mugirango/Boisanga/4317/7088, 7989, 7090 and 7091.
THAT the honourable Court be pleased to issue interim orders of stay of the Ruling delivered on the 19 th day of December 2024 pending hearing and determination of the Application.
THAT the honourable Court be pleased to grant an order of stay of execution of the Grant issued on the 17 th April 2023 in Succession Cause No. E095 of 2022 pending hearing and determination of the Appeal.
THAT the costs of and incidental to this Application be provided for.
The Application is supported by the Applicant’s affidavit wherein he avers that the impugned ruling of 19 th December 2024 was delivered in his absence as he was acting in person at the time and that he only became aware of it after he was served with a letter from the Lands Registrar on 26 th March 2025 informing of the intended demarcations on his late mother’s Estate. He averred that he is the only son and Administrator of the deceased’s Estate and that the trial court declined to take evidence of a will containing the deceased’s final wishes on the manner of distribution of her Estate.
The Applicant further avers that he intends to prosecute the Appeal expeditiously and that it would be in the interests of justice to allow the application. He adds that the Respondents would not be prejudiced in any manner since the Applicant currently occupies the Estate.
The Respondent opposed the Application through the affidavit of Jeriah Kerubo Osero who states that the said Application has been overtaken by events since the Grant of Letters of Administration issued by the Magistrates’ Court in Succession E095 of 2022 together with the Certificate of Confirmation of Grant had already been duly executed through subdivisions and registration that culminated into a subdivision of the deceased’s Estate which comprised of North Mugirango/Boisanga/4317 into parcels Nos. North Mugirango/Boisanga/7088, 7989, 7090 and 7091.
The Respondent’s deponent further averred that the Applicant was registered as the proprietor of North Mugirango/Boisanga/7088, which he further subdivided on 6 th May 2025 into North Mugirango/Boisanga/7136, 7137 and 7138 and transferred to third parties. The Respondents states that the intended appeal will serve no useful purpose since the subject of the Appeal no longer exists.
It was the Respondent’s case that the Applicant has always derailed the process of distribution of the Estate and that the present Application is one such unfortunate attempt to delay the case.
The Respondent noted that the Applicant had initially indicated that the deceased died intestate when applying for Grant of Letters of Administration and proceeded to allocate the Respondents 0.55 Ha. each, without making reference to the Will which he now seeks to rely upon. The Respondent further observed that the alleged Will was first introduced on 26 th October 2023 when the Respondents applied for the Revocation of Grant but was unable to avail witnesses to the making of the Will and instead sought an extension of time to conduct negotiations so as to include all beneficiaries in the proposed mode of distribution.
It was further contended that when the matter came up for confirmation of Grant proceedings on 22 nd April 2024, the Applicant indicated that he was no longer interested in the said proceedings and did not mention the issue of the alleged Will.
The Application was canvassed by written submissions which I have keenly read and considered.
Issues for Determination
The main issue for my determination is whether the Applicant has made out a case for granting the orders of leave to extend time to file an appeal and stay of execution of the trial court’s orders.
Analysis and Determination
The principles governing leave to file an appeal out of time are well settled. Section 79G of the Civil Procedure Act provides as follows: -
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.
In Mutiso vs. Mwangi [1997] KLR 630 it was held that: -
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that generally, the matters which this court takes into account in deciding whether to grant an extension of time are; first, the length of delay; secondly, the reason for the delay; thirdly (possibly) the chances of appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the Respondent of the application is granted.”
Similarly, in the case of Salat vs. Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling) at paragraph 85 the Supreme Court rendered itself as follows: -
“85. This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a Court should consider in exercise of such discretion:
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; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time….”
In the present case, I note that Grant of Letters of Administration was issued on 17 th April 2023 after which the Applicant sought its revocation on the basis that there was an existing final Will and Testament from the deceased. In its Ruling of 19 th December 2024, the trial court stated that the Applicant had not demonstrated any of the grounds for revocation of the said Grant under Section 76 of the Law of Succession Act and consequently dismissed the said Application. It is this decision that forms the basis of the present Application and the intended Appeal.
The Applicant contends that the trial court did not consider the evidence of the deceased’s Will which was a pertinent issue for consideration on appeal. He also stated that because he was unrepresented in the trial court he was not aware of the date of the Ruling which was delivered in his absence.
I have considered the Applicant’s reasons for the delay in filing the appeal and my take is that the facts of the case paint the Applicant as an indolent litigant as he did not diligently follow up on the progress of his case.
A perusal of the record reveals that on 13 th February 2025, the mother title North Mugirango/Boisanga/4317 was closed on subdivision and new parcels Nos. North Mugirango/Boisanga/7088, 7989, 7090 and 7091 were created. Consequently, each of the parties to this suit, including the Applicant, was allocated a parcel of land from the new subdivisions. I have perused the contents of Exhibit No. ‘JKO2b’ which is a certified copy of the Green card in respect of the Applicant’s parcel No. 7088 and I note that there is an entry made on 6 th May 2025 when the said title was closed upon further subdivision and new parcels Nos. 7136, 7137 and 7138 created. It is further discernible, from the copy of Green Cards marked ‘JKO4b’ and ‘JKO4d’, that parcels Nos. 7137 and 7138 registered in the Applicant’s name were subsequently transferred to third parties on 23 rd May 2025.
From the above facts, it is clear that the Applicant proceeded to transact with his portion of the Estate. I therefore find that in the circumstances of this case, it is pointless and self-defeating for the Applicant to seek orders whose effect would be to nullify transactions that he has already benefitted from more so because the deceased’s original parcel No. 4317 no longer exists. I find that reversing the processes of mutation, survey, and subdivision, at this stage, would not only be impractical but against the interests of justice.
It is my further finding that if indeed the Applicant was not aware of the court’s Ruling of 19 th December 2024 and only learnt about it after he was served with the Registrar’s letter on 26 th March 2025, then he ought not to have proceeded to subdivide and transfer the portion allocated to him to third parties.
It is my view that a party cannot claim to be aggrieved by the outcome of a case and at the same time take active steps to benefit from the said outcome only to later turn around and cry foul. It is my finding that the Applicant’s actions reek of bad faith and lend credence to the 1 st Respondent’s assertions that his intention is to derail the process of distribution of the estate through delaying tactics so as to evade or subvert equal distribution of the estate. I find guidance in the decision in Sayers vs. Clarke Walker (a firm) [2002] EWCA Civ 645 at paragraph 22 wherein it was held thus: -
“It follows that when considering whether to grant an extension of time for an appeal against a final decision in a case of any complexity, the courts should consider “all the circumstances of the case” including: the interests of the administration of justice; whether the application for relief has been made promptly; whether the failure to comply was intentional; whether there is a good explanation for the failure; the extent to which the party in default has complied with other rules, practice directions and court orders; whether the failure to comply was caused by the party or his legal representative; the effect which the failure to comply had on each party; and the effect which the granting of relief would have on each party. In the case of a procedural appeal the court would also have to consider item (g):
“whether the trial date or the likely trial date can still be met if relief is granted”.”
Taking a cue from the above cited case, I find that the instant application has been overtaken by events thereby rendering the intended Appeal moot. The Applicant’s prayers fell short of the Equity Maxim that states: ‘ He who comes to Equity must come with clean hands’ when he filed this Application while at the same time proceeding to transact with his share of the estate by transferring it to third parties. I find that the Applicant lacks good faith and cannot benefit from this Court’s discretion to grant him leave to appeal out of time.
In sum, I find no merit in the Application and hereby I dismiss it with costs to the Respondents. The issue of stay of execution and the orders sought against the Land Registrar are now moot.
Orders accordingly.
'
SPENT
THAT the honourable Court be pleased to grant leave to file the Appeal out of time.
THAT upon granting prayers 1 and 2, there be an order restraining the Land Registrar Nyamira County from executing the Certificate of Grant of Confirmation (sic) issued by the trial court in Succession Cause No. E095 of 2022 by conducting an exercising boundary demarcation in North Mugirango/Boisanga/4317/7088, 7989, 7090 and 7091.
THAT the honourable Court be pleased to issue interim orders of stay of the Ruling delivered on the 19 th day of December 2024 pending hearing and determination of the Application.
THAT the honourable Court be pleased to grant an order of stay of execution of the Grant issued on the 17 th April 2023 in Succession Cause No. E095 of 2022 pending hearing and determination of the Appeal.
THAT the costs of and incidental to this Application be provided for.
The Application is supported by the Applicant’s affidavit wherein he avers that the impugned ruling of 19 th December 2024 was delivered in his absence as he was acting in person at the time and that he only became aware of it after he was served with a letter from the Lands Registrar on 26 th March 2025 informing of the intended demarcations on his late mother’s Estate. He averred that he is the only son and Administrator of the deceased’s Estate and that the trial court declined to take evidence of a will containing the deceased’s final wishes on the manner of distribution of her Estate.
The Applicant further avers that he intends to prosecute the Appeal expeditiously and that it would be in the interests of justice to allow the application. He adds that the Respondents would not be prejudiced in any manner since the Applicant currently occupies the Estate.
The Respondent opposed the Application through the affidavit of Jeriah Kerubo Osero who states that the said Application has been overtaken by events since the Grant of Letters of Administration issued by the Magistrates’ Court in Succession E095 of 2022 together with the Certificate of Confirmation of Grant had already been duly executed through subdivisions and registration that culminated into a subdivision of the deceased’s Estate which comprised of North Mugirango/Boisanga/4317 into parcels Nos. North Mugirango/Boisanga/7088, 7989, 7090 and 7091.
The Respondent’s deponent further averred that the Applicant was registered as the proprietor of North Mugirango/Boisanga/7088, which he further subdivided on 6 th May 2025 into North Mugirango/Boisanga/7136, 7137 and 7138 and transferred to third parties. The Respondents states that the intended appeal will serve no useful purpose since the subject of the Appeal no longer exists.
It was the Respondent’s case that the Applicant has always derailed the process of distribution of the Estate and that the present Application is one such unfortunate attempt to delay the case.
The Respondent noted that the Applicant had initially indicated that the deceased died intestate when applying for Grant of Letters of Administration and proceeded to allocate the Respondents 0.55 Ha. each, without making reference to the Will which he now seeks to rely upon. The Respondent further observed that the alleged Will was first introduced on 26 th October 2023 when the Respondents applied for the Revocation of Grant but was unable to avail witnesses to the making of the Will and instead sought an extension of time to conduct negotiations so as to include all beneficiaries in the proposed mode of distribution.
It was further contended that when the matter came up for confirmation of Grant proceedings on 22 nd April 2024, the Applicant indicated that he was no longer interested in the said proceedings and did not mention the issue of the alleged Will.
The Application was canvassed by written submissions which I have keenly read and considered.
Issues for Determination
The main issue for my determination is whether the Applicant has made out a case for granting the orders of leave to extend time to file an appeal and stay of execution of the trial court’s orders.
Analysis and Determination
The principles governing leave to file an appeal out of time are well settled. Section 79G of the Civil Procedure Act provides as follows: -
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.
In Mutiso vs. Mwangi [1997] KLR 630 it was held that: -
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that generally, the matters which this court takes into account in deciding whether to grant an extension of time are; first, the length of delay; secondly, the reason for the delay; thirdly (possibly) the chances of appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the Respondent of the application is granted.”
Similarly, in the case of Salat vs. Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling) at paragraph 85 the Supreme Court rendered itself as follows: -
“85. This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a Court should consider in exercise of such discretion:
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; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time….”
In the present case, I note that Grant of Letters of Administration was issued on 17 th April 2023 after which the Applicant sought its revocation on the basis that there was an existing final Will and Testament from the deceased. In its Ruling of 19 th December 2024, the trial court stated that the Applicant had not demonstrated any of the grounds for revocation of the said Grant under Section 76 of the Law of Succession Act and consequently dismissed the said Application. It is this decision that forms the basis of the present Application and the intended Appeal.
The Applicant contends that the trial court did not consider the evidence of the deceased’s Will which was a pertinent issue for consideration on appeal. He also stated that because he was unrepresented in the trial court he was not aware of the date of the Ruling which was delivered in his absence.
I have considered the Applicant’s reasons for the delay in filing the appeal and my take is that the facts of the case paint the Applicant as an indolent litigant as he did not diligently follow up on the progress of his case.
A perusal of the record reveals that on 13 th February 2025, the mother title North Mugirango/Boisanga/4317 was closed on subdivision and new parcels Nos. North Mugirango/Boisanga/7088, 7989, 7090 and 7091 were created. Consequently, each of the parties to this suit, including the Applicant, was allocated a parcel of land from the new subdivisions. I have perused the contents of Exhibit No. ‘JKO2b’ which is a certified copy of the Green card in respect of the Applicant’s parcel No. 7088 and I note that there is an entry made on 6 th May 2025 when the said title was closed upon further subdivision and new parcels Nos. 7136, 7137 and 7138 created. It is further discernible, from the copy of Green Cards marked ‘JKO4b’ and ‘JKO4d’, that parcels Nos. 7137 and 7138 registered in the Applicant’s name were subsequently transferred to third parties on 23 rd May 2025.
From the above facts, it is clear that the Applicant proceeded to transact with his portion of the Estate. I therefore find that in the circumstances of this case, it is pointless and self-defeating for the Applicant to seek orders whose effect would be to nullify transactions that he has already benefitted from more so because the deceased’s original parcel No. 4317 no longer exists. I find that reversing the processes of mutation, survey, and subdivision, at this stage, would not only be impractical but against the interests of justice.
It is my further finding that if indeed the Applicant was not aware of the court’s Ruling of 19 th December 2024 and only learnt about it after he was served with the Registrar’s letter on 26 th March 2025, then he ought not to have proceeded to subdivide and transfer the portion allocated to him to third parties.
It is my view that a party cannot claim to be aggrieved by the outcome of a case and at the same time take active steps to benefit from the said outcome only to later turn around and cry foul. It is my finding that the Applicant’s actions reek of bad faith and lend credence to the 1 st Respondent’s assertions that his intention is to derail the process of distribution of the estate through delaying tactics so as to evade or subvert equal distribution of the estate. I find guidance in the decision in Sayers vs. Clarke Walker (a firm) [2002] EWCA Civ 645 at paragraph 22 wherein it was held thus: -
“It follows that when considering whether to grant an extension of time for an appeal against a final decision in a case of any complexity, the courts should consider “all the circumstances of the case” including: the interests of the administration of justice; whether the application for relief has been made promptly; whether the failure to comply was intentional; whether there is a good explanation for the failure; the extent to which the party in default has complied with other rules, practice directions and court orders; whether the failure to comply was caused by the party or his legal representative; the effect which the failure to comply had on each party; and the effect which the granting of relief would have on each party. In the case of a procedural appeal the court would also have to consider item (g):
“whether the trial date or the likely trial date can still be met if relief is granted”.”
Taking a cue from the above cited case, I find that the instant application has been overtaken by events thereby rendering the intended Appeal moot. The Applicant’s prayers fell short of the Equity Maxim that states: ‘ He who comes to Equity must come with clean hands’ when he filed this Application while at the same time proceeding to transact with his share of the estate by transferring it to third parties. I find that the Applicant lacks good faith and cannot benefit from this Court’s discretion to grant him leave to appeal out of time.
In sum, I find no merit in the Application and hereby I dismiss it with costs to the Respondents. The issue of stay of execution and the orders sought against the Land Registrar are now moot.
Orders accordingly.
'