1. The Hon Abdiaziz Maalim Mohamed, SPK, delivered a judgment on 18th September 2025. Being dissatisfied with the judgment, the appellant filed an application dated 28th October 2025 seeking an enlargement of time to file an appeal and a stay pending appeal.
2. The Respondent opposed the application and filed grounds of opposition and a replying affidavit sworn on 27th January 2026, in which it was contended that there was already an appeal, filed without leave of the Court and that what the appellant was doing was to have the Court validate what the appellant had already done.
3. The respondent deposed that a judgment was delivered in the matter before the Kadhi’s Court on 2nd October 2014 and that the impugned ruling delivered on 18th September 2025 was in respect of the Respondent’s application dated 7th August 2025 vide which she had sought the execution of the judgment delivered in 2014. It was stated that the application was a plot to delay justice and deny the respondent the fruits of the judgment in his favour.
4. I have perused the ruling dated 18th September 2025. I note that the same decision arose out of the Motion dated 7th August 2025. The Court dismissed the preliminary objection raised and sought to enforce the judgment of 2nd October 2014.
5. There is no doubt that the instant appeal was filed out of time and without leave. The Notice of Appeal was filed on 28th October 2025. An appeal to the High Court from the decision of the subordinate Court to the High Court is commenced by way of a Memorandum of Appeal. According to the Rules, a Memorandum of Appeal must be filed within 30 days of the date of the impugned decision.
6. Although the application before me contains 9 prayers, including one for an extension of time, it ought to have been filed as a miscellaneous application so that, if allowed, the appeal could thereafter be filed in an appeal file. A draft memorandum of appeal would, in such a case, have been annexed to the application for the Court's perusal, enabling the Court to determine whether the appeal was arguable and, if leave to file an appeal out of time could be granted.
7. This Court has considered similar applications in the past. In the case of Mohamed & another v another & another [2026] KEHC 4277 (KLR), I ruled as follows:
“11 I have considered the preliminary objection and the parties' submissions. It appears to me that the appellant seeks this Court's validation of its decision to file an appeal without first obtaining an extension of time to do so. In my view, the situation in this case is similar to that faced by the Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR). In that case, the Supreme Court rejected an appeal filed out of time without leave. The Court emphatically stated that:
“…In his submissions, counsel for the applicant acknowledged having already filed his appeal. He now prays for extension of time and urges that once so granted, the Petition of appeal already filed be deemed to have been duly filed.
52. What we hear the applicant telling the court is that he is acknowledging having filed a ‘document’ he calls ‘an appeal’ out of time without leave of the court. Pursuant to rule 33(1) of the court’s rules, it is mandatory that an appeal can only be filed within 30 days of filing the notice of appeal. Under rule 53 of the court’s rules, this court can indeed extend time. However, it cannot be gainsaid that where the law provides for the time within which something ought to be done, if that time lapses, one needs to first seek extension of that time before he can proceed to do that which the law requires.
53. By filing an appeal out of time before seeking an extension of time, and subsequently seeking the court to extend time and recognize such an appeal, is tantamount to moving the court to remedy an illegality. This, the court cannot do.
54. To file an appeal out of time and seek the court to extend time is presumptive and inappropriate. No appeal can be filed out of time without leave of the court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this court will not accept a document filed out of time without leave of the court. It is unfortunate that Petition No 10 of 2014 has been accorded a reference number in this court’s registry. This is irregular as that document is unknown in law, and the same should be struck out. Where one intends to file an appeal out of time and seeks extension of time, the much he can do is to annex the draft intended petition of appeal for the court’s perusal when making his application for extension of time; and not to file an appeal and seek to legalize it. Petition No 10 of 2014, having been filed out of time and without leave (an order of this court extending time), is expunged from the court’s record.”
8. I note that there is no requirement presently for a party to obtain leave before appealing the decision of the Succession Court. In any case, as an appeal from the Kadhi’s Court, leave to appeal is automatic under the relevant statute. Having said that, leave to appeal out of time and leave to appeal in respect of succession matters are different concepts with different conditions.
9. The upshot of the foregoing is that I have not found merit in the motion dated 28th October 2026. The same is hereby struck out. The subsisting interim orders are hereby set aside.
10. Parties shall bear their own costs of the application.
11. It is so ordered.
Dated and signed this 27th day of April 2026. Delivered virtually through Microsoft TEAMS.
2. The Respondent opposed the application and filed grounds of opposition and a replying affidavit sworn on 27th January 2026, in which it was contended that there was already an appeal, filed without leave of the Court and that what the appellant was doing was to have the Court validate what the appellant had already done.
3. The respondent deposed that a judgment was delivered in the matter before the Kadhi’s Court on 2nd October 2014 and that the impugned ruling delivered on 18th September 2025 was in respect of the Respondent’s application dated 7th August 2025 vide which she had sought the execution of the judgment delivered in 2014. It was stated that the application was a plot to delay justice and deny the respondent the fruits of the judgment in his favour.
4. I have perused the ruling dated 18th September 2025. I note that the same decision arose out of the Motion dated 7th August 2025. The Court dismissed the preliminary objection raised and sought to enforce the judgment of 2nd October 2014.
5. There is no doubt that the instant appeal was filed out of time and without leave. The Notice of Appeal was filed on 28th October 2025. An appeal to the High Court from the decision of the subordinate Court to the High Court is commenced by way of a Memorandum of Appeal. According to the Rules, a Memorandum of Appeal must be filed within 30 days of the date of the impugned decision.
6. Although the application before me contains 9 prayers, including one for an extension of time, it ought to have been filed as a miscellaneous application so that, if allowed, the appeal could thereafter be filed in an appeal file. A draft memorandum of appeal would, in such a case, have been annexed to the application for the Court's perusal, enabling the Court to determine whether the appeal was arguable and, if leave to file an appeal out of time could be granted.
7. This Court has considered similar applications in the past. In the case of Mohamed & another v another & another [2026] KEHC 4277 (KLR), I ruled as follows:
“11 I have considered the preliminary objection and the parties' submissions. It appears to me that the appellant seeks this Court's validation of its decision to file an appeal without first obtaining an extension of time to do so. In my view, the situation in this case is similar to that faced by the Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR). In that case, the Supreme Court rejected an appeal filed out of time without leave. The Court emphatically stated that:
“…In his submissions, counsel for the applicant acknowledged having already filed his appeal. He now prays for extension of time and urges that once so granted, the Petition of appeal already filed be deemed to have been duly filed.
52. What we hear the applicant telling the court is that he is acknowledging having filed a ‘document’ he calls ‘an appeal’ out of time without leave of the court. Pursuant to rule 33(1) of the court’s rules, it is mandatory that an appeal can only be filed within 30 days of filing the notice of appeal. Under rule 53 of the court’s rules, this court can indeed extend time. However, it cannot be gainsaid that where the law provides for the time within which something ought to be done, if that time lapses, one needs to first seek extension of that time before he can proceed to do that which the law requires.
53. By filing an appeal out of time before seeking an extension of time, and subsequently seeking the court to extend time and recognize such an appeal, is tantamount to moving the court to remedy an illegality. This, the court cannot do.
54. To file an appeal out of time and seek the court to extend time is presumptive and inappropriate. No appeal can be filed out of time without leave of the court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this court will not accept a document filed out of time without leave of the court. It is unfortunate that Petition No 10 of 2014 has been accorded a reference number in this court’s registry. This is irregular as that document is unknown in law, and the same should be struck out. Where one intends to file an appeal out of time and seeks extension of time, the much he can do is to annex the draft intended petition of appeal for the court’s perusal when making his application for extension of time; and not to file an appeal and seek to legalize it. Petition No 10 of 2014, having been filed out of time and without leave (an order of this court extending time), is expunged from the court’s record.”
8. I note that there is no requirement presently for a party to obtain leave before appealing the decision of the Succession Court. In any case, as an appeal from the Kadhi’s Court, leave to appeal is automatic under the relevant statute. Having said that, leave to appeal out of time and leave to appeal in respect of succession matters are different concepts with different conditions.
9. The upshot of the foregoing is that I have not found merit in the motion dated 28th October 2026. The same is hereby struck out. The subsisting interim orders are hereby set aside.
10. Parties shall bear their own costs of the application.
11. It is so ordered.
Dated and signed this 27th day of April 2026. Delivered virtually through Microsoft TEAMS.