REPUBLIC OF KENYA
IN THE HIGH COURT AT KERICHO
CIVIL APPEAL NO. E109 OF 2025
NANCY CHEPKEMOI MUTAI............................................................................APPELLANT
VERSUS
KIPKOECH SIELE.............................................................................................RESPONDENT
RULING
Background
1. The Appellant, dissatisfied with the ruling of Hon. C. Obulutsa, Chief Magistrate, delivered on 28th January 2025 in Kericho Succession Cause No. E077 of 2022 concerning the estate of the late Joseph Kipsiele Cheriro, filed this appeal. The parties are siblings and, from the material placed before the Court, are said to be the two children of the deceased.
2. The ruling dismissed the Appellant’s application in which she challenged the grant and certificate of confirmation of grant and sought orders relating to the distribution of the deceased’s estate.
3. On the same date, 28 th January 2025, she lodged a notice of appeal. Thereafter, she moved this Court seeking stay of execution of the impugned ruling and orders by an application dated 6 th February 2025. The Appellant states that stay was granted upon the condition that she deposit security of Kshs. 200,000/=. She avers that, being financially constrained, she was compelled to borrow funds from friends and relatives in order to comply with that condition.
4. The Appellant also requested typed and certified proceedings from the subordinate court. A certificate of delay subsequently issued by the Executive Officer of the Kericho Law Courts indicates that a copy of the ruling was available on 28th January 2025, while the certified proceedings were ready for collection on 3rd April 2025.
5. When the matter came before this Court for directions on 6 th May 2026, counsel for the Respondent objected to the admission of the appeal on the ground that it had been lodged outside the prescribed statutory period. The Court directed the Appellant to place before it the certificate of delay and thereafter, on 26 th May 2026 when the matter came up for further directions, the court directed the parties to canvass the question of delay by way of written submissions.
Appellant's Case
6. The Appellant submits that the delay before filing the appeal was neither deliberate nor intended to obstruct the course of justice. She states that she demonstrated her intention to appeal from the outset by lodging a notice of appeal immediately after delivery of the ruling and thereafter moving this Court for preservation of the subject matter.
7. She further submits that she sought the lower court proceedings and that certified proceedings were not made available until 3 rd April 2025. She states that in the meantime she had been required by this Court to furnish security of Kshs. 200,000/= as a condition for stay and that, owing to her financial circumstances she had to borrow money from friends and relatives to meet that condition.
8. The Appellant further urges the Court to consider the substance of the dispute. She states that she and the Respondent are the only children of the deceased and that the estate essentially comprises land parcel KERICHO/SOSIOT/591, which she contends ought to be shared between them.
9. The Appellant contends that rejecting the appeal solely on account of delay would shut her out from challenging a decision which, she says, deprives her of a share in her father's estate. She maintains that the Respondent will suffer no prejudice that cannot be addressed by appropriate orders and urges the Court to allow the appeal to proceed on its merits.
Respondent's Case
10. The Respondent opposes admission of the appeal. His position is that the appeal is hopelessly out of time and that the Appellant has failed to satisfactorily explain the entire period of delay. The Respondent places particular reliance upon the certificate of delay. He submits that even accepting 3 rd April 2025 as the date upon which the proceedings were ready for collection, the Appellant did not file her appeal until 10 th December 2025, approximately 251 days later.
11. Counsel argues that a certificate of delay protects a diligent litigant from delay attributable to the court registry; it does not give a litigant an indefinite period within which to lodge an appeal after the required documents have become available.
12. The Respondent relies upon Dilpack Kenya Limited v William Muthama Kitonyi [2018] KEHC 4858 (KLR) , County Executive of Kisumu v County Government of Kisumu & 8 Others [2017] eKLR , and Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR , for the proposition that timelines are not mere technicalities and that a litigant seeking extension of time bears the burden of satisfactorily explaining the delay. The Respondent consequently urges the Court to decline to admit the appeal and to strike it out with costs.
Issue for Determination
13. Having considered the record, the parties' submissions and the authorities cited, the issue for determination is:
i. Whether Section 79G of the Civil procedure Act is applicable to succession matters.
ii. Whether there was unreasonable delay in filing the appeal .
iii. Whether the delay is excusable .
Analysis and Determination
14. The impugned ruling was made in Kericho Succession Cause No. E077 of 2022. Section 50(1) of the Law of Succession Act provides that an appeal lies to the High Court from an order or decree made by a resident magistrate in respect of an estate, and that the decision of the High Court is final. The section does not prescribe a period within which that appeal must be filed.
15. Rule 63 of the Probate and Administration Rules sets out the provisions of the Civil Procedure Rules that apply to succession proceedings. The general regime governing succession appeals from subordinate courts is not among the provisions imported by that rule.
16. In In re Estate of Mwololo Kisele Mukuti (Deceased) (Family Appeal 1 of 2019) [2022] KEHC 15092 (KLR) , the High Court considered the same question. It held that section 79G of the Civil Procedure Act does not apply to appeals in probate and administration matters; that such appeals arise under section 50 of the Law of Succession Act; and that, because the applicable succession legislation does not prescribe the civil thirty-day period, the court ought considers whether the appeal was filed within a reasonable time.
17. I fully agree with that reasoning as Parliament in its wisdom decided not to limit period within which an appeals in succession matters. Succession matters involve family inheritance rights and are very emotive in nature . Section 79G of the Civil Procedure Act, which prescribes thirty days for filing a civil appeal, is therefore not applicable in this succession appeal.
18. The Respondent's objection on the premise that this appeal was required to be filed within thirty days under section 79G thus does not hold in my view . There was therefore no need to seek extension of time as time was not limited .
19. What is reasonable depends on the length of the interval, the explanation and conduct of the appellant, the nature of the dispute, and any prejudice caused to the other party.
20. The ruling was delivered on 28th January 2025 and the appeal was filed on 10th December 2025. The interval was substantial. The certified proceedings were ready on 3rd April 2025, leaving approximately 251 days before the appeal was filed. The Appellant lodged a notice of appeal on the date of the ruling. The same was superfluous as there is no requirement of a notice of Appeal from the Lower court to the High Court.
21. The Appellant also moved the Court by an application dated 6th February 2025 to preserve the subject matter, complied with an order to deposit Kshs. 200,000 as security, and requested typed and certified proceedings. Without going to the merits of the appeal , the Respondent describes herself herein as a daughter of the deceased. This is a succession matter involving an inheritance dispute and right of litigants to be heard is fundamental. Article 159(2)(d) of the Constitution enjoins the courts to determine cases on substance rather than procedure .Though her explanation concerning financial constraints does not account for the period after the proceedings were typed , the general conduct of the appellant was not consistent with that of a person who had no interest or deliberately delayed in filing of the appeal . No prejudice would be occasioned to the respondent if the appeal is admitted .
22. I proceed to exercise my discretion in favour of the appellant and find that the explanation of delay given by the appellant is plausible and thus striking out the appeal is draconian and would deny the appellant her right to be finally heard in the succession cause relating to the estate of her father.
Orders
23. For those reasons, the Respondent's objection is overruled. The appeal is admitted and deemed as properly before the Court and shall proceed to hearing on merit.
24. Each party to bear his own costs as this is a family matter.
T.A ODERA
JUDGE
21.9.26
DELIVERED AT KERICHO THIS 21 ST DAY OF SEPTEMBER 2026 IN THE PRESENCE OF :
MISS CHEROTICH HOLDING BRIEF FOR MR O.LANGAT FOR THE APPELLANT N/A FOR THE RESPONDENT
CA:BUSIENEI
.
Directions :
1. The appeal to proceed by way of written submissions .
2. Appellant to file submissions within 21 days
3. Respondent will file submissions within 21 days.
4. Mention on 17.9.26 for compliance
T.A ODERA
JUDGE
21.9.26
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IN THE HIGH COURT AT KERICHO
CIVIL APPEAL NO. E109 OF 2025
NANCY CHEPKEMOI MUTAI............................................................................APPELLANT
VERSUS
KIPKOECH SIELE.............................................................................................RESPONDENT
RULING
Background
1. The Appellant, dissatisfied with the ruling of Hon. C. Obulutsa, Chief Magistrate, delivered on 28th January 2025 in Kericho Succession Cause No. E077 of 2022 concerning the estate of the late Joseph Kipsiele Cheriro, filed this appeal. The parties are siblings and, from the material placed before the Court, are said to be the two children of the deceased.
2. The ruling dismissed the Appellant’s application in which she challenged the grant and certificate of confirmation of grant and sought orders relating to the distribution of the deceased’s estate.
3. On the same date, 28 th January 2025, she lodged a notice of appeal. Thereafter, she moved this Court seeking stay of execution of the impugned ruling and orders by an application dated 6 th February 2025. The Appellant states that stay was granted upon the condition that she deposit security of Kshs. 200,000/=. She avers that, being financially constrained, she was compelled to borrow funds from friends and relatives in order to comply with that condition.
4. The Appellant also requested typed and certified proceedings from the subordinate court. A certificate of delay subsequently issued by the Executive Officer of the Kericho Law Courts indicates that a copy of the ruling was available on 28th January 2025, while the certified proceedings were ready for collection on 3rd April 2025.
5. When the matter came before this Court for directions on 6 th May 2026, counsel for the Respondent objected to the admission of the appeal on the ground that it had been lodged outside the prescribed statutory period. The Court directed the Appellant to place before it the certificate of delay and thereafter, on 26 th May 2026 when the matter came up for further directions, the court directed the parties to canvass the question of delay by way of written submissions.
Appellant's Case
6. The Appellant submits that the delay before filing the appeal was neither deliberate nor intended to obstruct the course of justice. She states that she demonstrated her intention to appeal from the outset by lodging a notice of appeal immediately after delivery of the ruling and thereafter moving this Court for preservation of the subject matter.
7. She further submits that she sought the lower court proceedings and that certified proceedings were not made available until 3 rd April 2025. She states that in the meantime she had been required by this Court to furnish security of Kshs. 200,000/= as a condition for stay and that, owing to her financial circumstances she had to borrow money from friends and relatives to meet that condition.
8. The Appellant further urges the Court to consider the substance of the dispute. She states that she and the Respondent are the only children of the deceased and that the estate essentially comprises land parcel KERICHO/SOSIOT/591, which she contends ought to be shared between them.
9. The Appellant contends that rejecting the appeal solely on account of delay would shut her out from challenging a decision which, she says, deprives her of a share in her father's estate. She maintains that the Respondent will suffer no prejudice that cannot be addressed by appropriate orders and urges the Court to allow the appeal to proceed on its merits.
Respondent's Case
10. The Respondent opposes admission of the appeal. His position is that the appeal is hopelessly out of time and that the Appellant has failed to satisfactorily explain the entire period of delay. The Respondent places particular reliance upon the certificate of delay. He submits that even accepting 3 rd April 2025 as the date upon which the proceedings were ready for collection, the Appellant did not file her appeal until 10 th December 2025, approximately 251 days later.
11. Counsel argues that a certificate of delay protects a diligent litigant from delay attributable to the court registry; it does not give a litigant an indefinite period within which to lodge an appeal after the required documents have become available.
12. The Respondent relies upon Dilpack Kenya Limited v William Muthama Kitonyi [2018] KEHC 4858 (KLR) , County Executive of Kisumu v County Government of Kisumu & 8 Others [2017] eKLR , and Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR , for the proposition that timelines are not mere technicalities and that a litigant seeking extension of time bears the burden of satisfactorily explaining the delay. The Respondent consequently urges the Court to decline to admit the appeal and to strike it out with costs.
Issue for Determination
13. Having considered the record, the parties' submissions and the authorities cited, the issue for determination is:
i. Whether Section 79G of the Civil procedure Act is applicable to succession matters.
ii. Whether there was unreasonable delay in filing the appeal .
iii. Whether the delay is excusable .
Analysis and Determination
14. The impugned ruling was made in Kericho Succession Cause No. E077 of 2022. Section 50(1) of the Law of Succession Act provides that an appeal lies to the High Court from an order or decree made by a resident magistrate in respect of an estate, and that the decision of the High Court is final. The section does not prescribe a period within which that appeal must be filed.
15. Rule 63 of the Probate and Administration Rules sets out the provisions of the Civil Procedure Rules that apply to succession proceedings. The general regime governing succession appeals from subordinate courts is not among the provisions imported by that rule.
16. In In re Estate of Mwololo Kisele Mukuti (Deceased) (Family Appeal 1 of 2019) [2022] KEHC 15092 (KLR) , the High Court considered the same question. It held that section 79G of the Civil Procedure Act does not apply to appeals in probate and administration matters; that such appeals arise under section 50 of the Law of Succession Act; and that, because the applicable succession legislation does not prescribe the civil thirty-day period, the court ought considers whether the appeal was filed within a reasonable time.
17. I fully agree with that reasoning as Parliament in its wisdom decided not to limit period within which an appeals in succession matters. Succession matters involve family inheritance rights and are very emotive in nature . Section 79G of the Civil Procedure Act, which prescribes thirty days for filing a civil appeal, is therefore not applicable in this succession appeal.
18. The Respondent's objection on the premise that this appeal was required to be filed within thirty days under section 79G thus does not hold in my view . There was therefore no need to seek extension of time as time was not limited .
19. What is reasonable depends on the length of the interval, the explanation and conduct of the appellant, the nature of the dispute, and any prejudice caused to the other party.
20. The ruling was delivered on 28th January 2025 and the appeal was filed on 10th December 2025. The interval was substantial. The certified proceedings were ready on 3rd April 2025, leaving approximately 251 days before the appeal was filed. The Appellant lodged a notice of appeal on the date of the ruling. The same was superfluous as there is no requirement of a notice of Appeal from the Lower court to the High Court.
21. The Appellant also moved the Court by an application dated 6th February 2025 to preserve the subject matter, complied with an order to deposit Kshs. 200,000 as security, and requested typed and certified proceedings. Without going to the merits of the appeal , the Respondent describes herself herein as a daughter of the deceased. This is a succession matter involving an inheritance dispute and right of litigants to be heard is fundamental. Article 159(2)(d) of the Constitution enjoins the courts to determine cases on substance rather than procedure .Though her explanation concerning financial constraints does not account for the period after the proceedings were typed , the general conduct of the appellant was not consistent with that of a person who had no interest or deliberately delayed in filing of the appeal . No prejudice would be occasioned to the respondent if the appeal is admitted .
22. I proceed to exercise my discretion in favour of the appellant and find that the explanation of delay given by the appellant is plausible and thus striking out the appeal is draconian and would deny the appellant her right to be finally heard in the succession cause relating to the estate of her father.
Orders
23. For those reasons, the Respondent's objection is overruled. The appeal is admitted and deemed as properly before the Court and shall proceed to hearing on merit.
24. Each party to bear his own costs as this is a family matter.
T.A ODERA
JUDGE
21.9.26
DELIVERED AT KERICHO THIS 21 ST DAY OF SEPTEMBER 2026 IN THE PRESENCE OF :
MISS CHEROTICH HOLDING BRIEF FOR MR O.LANGAT FOR THE APPELLANT N/A FOR THE RESPONDENT
CA:BUSIENEI
.
Directions :
1. The appeal to proceed by way of written submissions .
2. Appellant to file submissions within 21 days
3. Respondent will file submissions within 21 days.
4. Mention on 17.9.26 for compliance
T.A ODERA
JUDGE
21.9.26
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