1. Before this Court is an application dated 26th November 2025 seeking the following orders:
a) Spent.
b) THAT this Honourable Court be pleased to grant the Applicants leave to file an appeal out of time.
c) THAT this Honourable Court be pleased to grant an order of stay of execution of the ruling delivered in Mombasa KCSUCC/E241/2024 on 23rd October 2025 pending the hearing and determination of this application.
d) THAT this Honourable Court be pleased to grant an order of stay of execution of the ruling delivered in Mombasa KCSUCC/E241/2025 on 23rd October 2025 pending the hearing and determination of the intended appeal.
e) THAT costs of this application be provided for.
2. The Applicants swore a supporting affidavit on even date in which they averred that the parties are siblings and participated in proceedings before the Kadhi’s Court, culminating in a ruling delivered on 23rd October 2025, which they contend was satisfactory to all parties. They further deponed that the ruling was based on a mutual consent order dated 5th September 2024 (erroneously stated as 13th March 2025).
They further state that on 13th February 2025, Hon. Omar Swaleh delivered a judgment emanating from the said consent, which was not appealed. The Applicants contend that the ruling of 23rd October 2025 was issued without any substantive application and effectively amounted to an appeal or review of the earlier judgment.
They argue that the learned Kadhi acted ultra vires as the court was functus officio. They further allege that the Kadhi Court had previously issued ex parte orders that escalated animosity within the family.
The Applicants also state that Plot No. 285/I/MN, Frere Town, is currently subject to a title dispute and is therefore not available for administration. They further claim they are squatters on the said parcel and have received threats of demolition, which their advocates have already responded to.
3. The Respondents filed Grounds of Opposition dated 8th December 2025 contending that the application is incompetent for contravening Order 42 Rule 1 and Rule 6(1) and (6) of the Civil Procedure Rules, Sections 65(1)(c), 67(2), 75 and 79G of the Civil Procedure Act, and Rules 86 and 87 of the Kadhi’s Court (Procedure and Practice) Rules, 2020.
They further argue that the application is improperly instituted as a miscellaneous application instead of a substantive appeal. They also contend that part of the appeal arises from a consent order, which is not appealable in law.
The Respondents further assert that the Applicants have not sought leave to appeal, have not proposed an alternative mode of distribution of the estate, and have failed to demonstrate the alleged illegality of the distribution order.
4. No written submissions were filed. The issue for determination is whether the application is meritorious.
DETERMINATION
5. The Court has carefully considered the application and the grounds of opposition and identifies the following issues for determination:
(a) Whether leave to file appeal out of time can be granted through a miscellaneous application
There exists divergent judicial approaches on whether an application for leave to appeal out of time must be preceded by a filed appeal.
On one hand, courts have accepted miscellaneous applications as procedurally competent. See Tego v Tego [2024] KEHC 1501 (KLR) and Ahmed v Ahmed [2023] KEHC 19489 (KLR) .
On the other hand, courts have insisted on the filing of a substantive appeal before seeking leave, as in Charles N. Ngugi v ASL Credit Limited [2022] KEHC 1951 (KLR) and the seminal decision in Gerald M’Limbine v Joseph Kangangi [2009] KEHC 3495 (KLR) .
In Gerald M’Limbine , the Court held:
“An applicant seeking an appeal to be admitted out of time must in effect file such an appeal and at the same time seek leave… Admission presupposes that the appeal has been filed.”
However, a contrary and more liberal interpretation was adopted in Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & another [2018] KEHC 8788 (KLR) where the Court held that requiring a prior filed appeal would amount to undue procedural technicality.
This Court is of the view that the decisive consideration is not the form of the application but whether a draft memorandum of appeal exists for the Court’s perusal. In this case, a draft memorandum of appeal has been filed.
(b) Whether leave to appeal out of time should be granted
The guiding principles for extension of time were set out in Mwangi v Kenya Airways Ltd [2003] KLR , namely:
• Length of delay;
• Reason for delay;
• Arguability of the appeal;
• Prejudice to the respondent;
• Importance of compliance with time limits; and
• Effect on the administration of justice.
Section 79G of the Civil Procedure Act provides a statutory period of 30 days for filing appeals, exclusive of time certified by the lower court for preparation of proceedings.
In the present case, the delay is minimal, being less than one week beyond the statutory period. The Court does not find the delay to be inordinate.
Further, the draft memorandum of appeal raises arguable points touching on jurisdiction and alleged procedural irregularities which warrant consideration on appeal.
The Respondents’ argument that the appeal arises from a consent order is not supported by the material before the Court and is therefore misplaced.
Accordingly, the Court finds that the threshold for grant of leave has been met.
(c) Whether stay of execution should be granted
The applicable provision is Order 42 Rule 6 of the Civil Procedure Rules, which requires:
i. Demonstration of substantial loss;ii. Application made without unreasonable delay; andiii. Provision of security as the Court deems fit.
In Mukuma v Abuoga (1988) KLR 645 , the Court held that substantial loss is the cornerstone of the jurisdiction for stay.
The Applicants allege that Plot No. 285/I/MN is subject to a title dispute and is therefore at risk of loss or interference. Although the supporting documentation refers to a different parcel number, the Court is inclined, in the interests of justice, to exercise caution and preserve the subject matter pending appeal.
CONCLUSION
6. In the circumstances, the Court finds the application to be meritorious and accordingly orders as follows:
i. Leave to file appeal out of time is hereby granted.
ii. The Memorandum of Appeal shall be filed within 14 days from the date hereof.
iii. There shall be a stay of execution of the ruling delivered on 23rd October 2025 in Mombasa KCSUCC/E241/2025 pending the hearing and determination of the intended appeal.
iv. Costs of the application shall abide in the Appeal.
DATED, SIGNED AND DELIVERED AT MOMBASA IN OPEN COURT / VIA MS TEAMS THIS …22nd… DAY OF …April…… 2026.
HON. LADY JUSTICE W. K. MICHENI JUDGE
In the presence of:Mr. Kiprono holding brief for Mr. Abubakar for the respondent
No appearance by Applicant
Court Assistant: Bebora
a) Spent.
b) THAT this Honourable Court be pleased to grant the Applicants leave to file an appeal out of time.
c) THAT this Honourable Court be pleased to grant an order of stay of execution of the ruling delivered in Mombasa KCSUCC/E241/2024 on 23rd October 2025 pending the hearing and determination of this application.
d) THAT this Honourable Court be pleased to grant an order of stay of execution of the ruling delivered in Mombasa KCSUCC/E241/2025 on 23rd October 2025 pending the hearing and determination of the intended appeal.
e) THAT costs of this application be provided for.
2. The Applicants swore a supporting affidavit on even date in which they averred that the parties are siblings and participated in proceedings before the Kadhi’s Court, culminating in a ruling delivered on 23rd October 2025, which they contend was satisfactory to all parties. They further deponed that the ruling was based on a mutual consent order dated 5th September 2024 (erroneously stated as 13th March 2025).
They further state that on 13th February 2025, Hon. Omar Swaleh delivered a judgment emanating from the said consent, which was not appealed. The Applicants contend that the ruling of 23rd October 2025 was issued without any substantive application and effectively amounted to an appeal or review of the earlier judgment.
They argue that the learned Kadhi acted ultra vires as the court was functus officio. They further allege that the Kadhi Court had previously issued ex parte orders that escalated animosity within the family.
The Applicants also state that Plot No. 285/I/MN, Frere Town, is currently subject to a title dispute and is therefore not available for administration. They further claim they are squatters on the said parcel and have received threats of demolition, which their advocates have already responded to.
3. The Respondents filed Grounds of Opposition dated 8th December 2025 contending that the application is incompetent for contravening Order 42 Rule 1 and Rule 6(1) and (6) of the Civil Procedure Rules, Sections 65(1)(c), 67(2), 75 and 79G of the Civil Procedure Act, and Rules 86 and 87 of the Kadhi’s Court (Procedure and Practice) Rules, 2020.
They further argue that the application is improperly instituted as a miscellaneous application instead of a substantive appeal. They also contend that part of the appeal arises from a consent order, which is not appealable in law.
The Respondents further assert that the Applicants have not sought leave to appeal, have not proposed an alternative mode of distribution of the estate, and have failed to demonstrate the alleged illegality of the distribution order.
4. No written submissions were filed. The issue for determination is whether the application is meritorious.
DETERMINATION
5. The Court has carefully considered the application and the grounds of opposition and identifies the following issues for determination:
(a) Whether leave to file appeal out of time can be granted through a miscellaneous application
There exists divergent judicial approaches on whether an application for leave to appeal out of time must be preceded by a filed appeal.
On one hand, courts have accepted miscellaneous applications as procedurally competent. See Tego v Tego [2024] KEHC 1501 (KLR) and Ahmed v Ahmed [2023] KEHC 19489 (KLR) .
On the other hand, courts have insisted on the filing of a substantive appeal before seeking leave, as in Charles N. Ngugi v ASL Credit Limited [2022] KEHC 1951 (KLR) and the seminal decision in Gerald M’Limbine v Joseph Kangangi [2009] KEHC 3495 (KLR) .
In Gerald M’Limbine , the Court held:
“An applicant seeking an appeal to be admitted out of time must in effect file such an appeal and at the same time seek leave… Admission presupposes that the appeal has been filed.”
However, a contrary and more liberal interpretation was adopted in Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & another [2018] KEHC 8788 (KLR) where the Court held that requiring a prior filed appeal would amount to undue procedural technicality.
This Court is of the view that the decisive consideration is not the form of the application but whether a draft memorandum of appeal exists for the Court’s perusal. In this case, a draft memorandum of appeal has been filed.
(b) Whether leave to appeal out of time should be granted
The guiding principles for extension of time were set out in Mwangi v Kenya Airways Ltd [2003] KLR , namely:
• Length of delay;
• Reason for delay;
• Arguability of the appeal;
• Prejudice to the respondent;
• Importance of compliance with time limits; and
• Effect on the administration of justice.
Section 79G of the Civil Procedure Act provides a statutory period of 30 days for filing appeals, exclusive of time certified by the lower court for preparation of proceedings.
In the present case, the delay is minimal, being less than one week beyond the statutory period. The Court does not find the delay to be inordinate.
Further, the draft memorandum of appeal raises arguable points touching on jurisdiction and alleged procedural irregularities which warrant consideration on appeal.
The Respondents’ argument that the appeal arises from a consent order is not supported by the material before the Court and is therefore misplaced.
Accordingly, the Court finds that the threshold for grant of leave has been met.
(c) Whether stay of execution should be granted
The applicable provision is Order 42 Rule 6 of the Civil Procedure Rules, which requires:
i. Demonstration of substantial loss;ii. Application made without unreasonable delay; andiii. Provision of security as the Court deems fit.
In Mukuma v Abuoga (1988) KLR 645 , the Court held that substantial loss is the cornerstone of the jurisdiction for stay.
The Applicants allege that Plot No. 285/I/MN is subject to a title dispute and is therefore at risk of loss or interference. Although the supporting documentation refers to a different parcel number, the Court is inclined, in the interests of justice, to exercise caution and preserve the subject matter pending appeal.
CONCLUSION
6. In the circumstances, the Court finds the application to be meritorious and accordingly orders as follows:
i. Leave to file appeal out of time is hereby granted.
ii. The Memorandum of Appeal shall be filed within 14 days from the date hereof.
iii. There shall be a stay of execution of the ruling delivered on 23rd October 2025 in Mombasa KCSUCC/E241/2025 pending the hearing and determination of the intended appeal.
iv. Costs of the application shall abide in the Appeal.
DATED, SIGNED AND DELIVERED AT MOMBASA IN OPEN COURT / VIA MS TEAMS THIS …22nd… DAY OF …April…… 2026.
HON. LADY JUSTICE W. K. MICHENI JUDGE
In the presence of:Mr. Kiprono holding brief for Mr. Abubakar for the respondent
No appearance by Applicant
Court Assistant: Bebora