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THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
MISC.APPLICATION NO. E001 OF 2025
PATRICK WAMBILIANGA WASIKE………………………..APPLICANT
VERSUS
METRINE BULENYA WASIKE………………….……..1ST RESPONDENT
RUTH KHAOMA NYONGESA………………….……..2ND RESPONDENT
PAUL NDINYO WASIKE………………….…………….3RD RESPONDENT
BENJAMIN WAMBILIANGA WASIKE……………...4TH RESPONDENT
SUSAN NEKESA WANGILA…………………………….5TH RESPONDENT
RULING
1. Before this Court is an application by way of Notice of Motion dated 7th January 2025 and brought under Section 79G, 95, 1A, 1B, 3 & 3A of the Civil Procedure Act and all other enabling provisions of the Law. The Applicant seeks the following orders: -
a. That the Applicant be granted leave to lodge an appeal out of time against the Judgement of Hon. G. Adhiambo-Senior Principal Magistrate delivered on 5th October 2023, in Kimilili CMC Succ. Cause No. 184 of 2018.
b. That costs of this application be provided for.
2. The application is premised on the grounds that judgement was delivered on 5th October 2023; that aggrieved by the said judgement the Applicant desires to appeal against the same; that since then the Applicant has been unwell and is still undergoing treatment; that the Applicant’s failure to appeal within the statutory period as provided under law was not deliberate, but due to the fact that he was not able to get the certified copies of the Court proceedings and judgement on 13th December 2024; that the Applicant has an arguable appeal.
3. Patrick Wambilianga Wasike, swore an Affidavit supporting the Motion application on 7th January 2025. He stated that he was the Petitioner in Kimilili CMCC SUCC Cause No. 184 of 2018 and that on 12th October 2023, he sought for the certified copies of the Court proceedings and judgement in the matter, but the same was only availed to him on 13th December 2024. The appeal raises serious issues and the delay in filing the appeal was unintentional and beyond the Applicant’s control as he was unwell and unable to lodge the same.
4. Metrine Bulenywa Wasike, the 1st Respondent herein filed a Replying Affidavit sworn on 17th March 2025, on her own behalf and on behalf of the other Respondents. She deposed that she is aware that the Court will base its decision of granting leave to appeal out of time on the following ingredients: length of delay, reason for the delay, chances of the appeal succeeding and the degree of prejudice on the Respondent if the application is granted. She stated that with regards to the length of delay, the judgement in Succession Cause 184 of 2018 was delivered on 5th October 2023, and the Court distributed the deceased estate equitably amongst all the beneficiaries and that the Applicant is seeking leave after 1 ½ years. That the reason of delay only demonstrates that the Applicant was unwell even prior to the delivery of the lower Court judgement and his condition did not incapacitate him in way to justify the delay, and that the availed annexure PWW4 shows he was seen as an out-patient in the facility and discharged on the same day. That the chances of his appeal succeeding is none existent as the lower Court noted in its judgement that all the beneficiaries to the estate of the deceased were in agreement to the proposed mode of distribution in exception of the Applicant and that his draft memorandum of appeal wishes this Court to uphold his proposed mode of distribution which all the beneficiaries were opposed to. That the Respondents agree that they have already commenced execution of Grant as confirmed by the lower Court at the Land Registrar and the process is time consuming and costly for the Applicant to frustrate their execution efforts. That the allegations that the Applicant only got the certified copy of proceedings and judgement on 13th December 2024, yet the annexure marked PWW 2(b) confirms that the same were certified on 4th April 2024, clearly shows the Applicant’s conduct is contrary to the dints of equity, that he who seeks equity must come with clean hands.
5. In response to the Replying Affidavit, Patrick Wambilianga Wasike, filed a Further Affidavit sworn on 14th April 2025. He reiterated that he was diagnosed with secondary hypertension and as a result of the same could not lodge his appeal within the set statutory time and that there was no consent on distribution that was filed by the beneficiaries regards to the estate of the deceased in Kimilili CMCC SUCC Cause No. 184 of 2018 matter. That it is clear from the judgment of the lower Court that it adopted the proposed mode of distribution by the Objector and that his proposed mode of distribution was not opposed by all the Beneficiaries to the estate of the deceased. He attached the Affidavit sworn by Boniface Wasike Masibo, his co-administrator, sworn on 17th April 2025, wherein he stated that he supports the Applicant’s application for leave to appeal out of time.
6. The parties were directed to canvas the application by way of written submissions. Only the Applicant complied with the Court directives. Counsel for the Respondents filed written submissions but with regards to a totally different matter.
7. Having considered the Applicant’s application, the Replying Affidavit by the Respondents in opposition, the Further Affidavit and the Applicant’s written submissions, the main issue arising for determination is whether the Court should grant leave to the Applicants to file the appeal out of time;
8. Section 79G of the Civil Procedure Act is the operative part in answering the question whether the prayer to enlarge time to file the appeal is merited. Section 79G of the Civil Procedure Act provides that:
“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.”
9. From the provision above, it is noteworthy that the phrase used is “an appeal may be admitted out of time”. This therefore means the Court has discretion to allow admission of appeal out of time. However, the intended appeal ought to have already been filed before or together with an application seeking leave to extend time for filing an appeal. In Mugo & others v Wanjiru & another [1970] EA 482 the Court stated as follows:-
“Clearly, as a general rule the filing and service of the notice of appeal ought to be regularized before or at least at the same time as an application is made to extend the time for filing the record and the fact that this has not been done might be a reason for refusing the application or only allowing one on terms as to costs. But it does not mean that such an application must be refused.”
10. The decision whether or not to grant leave to appeal out of time or to admit an appeal out of time is an exercise of discretion by court. Some of the factors that aid Courts in exercising the discretion whether to extend time to file an appeal out of time were suggested by the Court of Appeal in Thuita Mwangi v Kenya Airways Ltd [2003] eKLR. They include the following:
i. The period of delay;
ii. The reason for the delay;
iii. The arguability of the appeal;
iv. The degree of prejudice which could be suffered by the if Respondent the extension is granted;
v. The importance of compliance with time limits to the particular litigation or issue; and
vi. The effect if any on the administration of justice or public interest if any is involved.
11. The Ruling of the lower Court in which the Applicant wishes to appeal on was delivered on 5th October 2023, while the present application was filed on 9th January 2025, a period of almost 1 ½ years after the lapse of the 30 days required by the law on appeals. The Applicant argues argue that the delay was occasioned by delay in obtaining Court proceedings and Judgement and that he was also unwell, and undergoing treatment.
12. On my perusal of the availed certified Court proceedings, it is clear that the same were availed to the Applicant on 4th April 2024, and the medical record availed indicated that he was been handled as an outpatient and still had the capability to issue the requisite instructions on his appeal to his Counsel.
13. In the Court of Appeal decision in the case of Edith Gichugu Koine v Stephen Njagi Thoithi [2014] eKLR where, although Odek JJA was dealing with an Application brought under the Court of Appeal Rules on extension of time to Appeal, the guidelines he gave are very much applicable herein. He stated as follows:
“8.……. There can be no doubt that the discretion I have to exercise under rule 4 is unfettered and does not require establishment of “sufficient reasons”. Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted, and whether the matter raises issues of public importance, amongst others – See FAKIR MOHAMED V JOSEPH MUGAMBI & 2 OTHERS, Civil Application Nai. 332 of 2004 (unreported). There is also a duty now imposed on the Court under sections 3A and 3B of the Appellate Jurisdiction Act to ensure that the factors considered are consonant with the overriding objective of civil litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the Court.”
14. I have considered the draft Memorandum of Appeal. The Applicant contends that the adoption of the Objectors proposed mode of distribution by the trial Court with regards to land parcels L.R No. Bokoli/Chwele/117 and L.R No. Bokoli/Chwele/118 was contrary to the wishes of the deceased person as he had already distributed the same to the beneficiaries of the 1st and 2nd houses. Also, the failure by the Court to consider that land parcel L.R No. Bokoli/Chwele/118 was subject to litigation in Kakamega HCC Suit No. 75 of 1985 and Eldoret Appeal No. 351 of 2014. I find that these are arguable issues. I am alive to right of the Applicant to Access to Justice under Article 48 of the Constitution of Kenya but this must be read together with an Article 159(2)(b) of the same Constitution which provides for fair hearing and expeditious hearing of cases. I find that it would be in the interests of justice to grant the Applicant leave to appeal out of time as the Respondents will not prejudiced by this due to the inordinate delay.
15. In the upshot, the application dated 7th January 2025 has merit and is thus allowed with costs to the respondents assessed at Ksh 30,000, payable within 45 days from the date hereof and in the event of default execution to issue.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 30Th day of September 2025.
M.S.Shariff
Judge
In the presence of:
Ms Okasa h/b for M Murunga for the Applicant
Ms Buluma h/b for Ms Mwangi for the respondents
Peter Machoni – court Assistant
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THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
MISC.APPLICATION NO. E001 OF 2025
PATRICK WAMBILIANGA WASIKE………………………..APPLICANT
VERSUS
METRINE BULENYA WASIKE………………….……..1ST RESPONDENT
RUTH KHAOMA NYONGESA………………….……..2ND RESPONDENT
PAUL NDINYO WASIKE………………….…………….3RD RESPONDENT
BENJAMIN WAMBILIANGA WASIKE……………...4TH RESPONDENT
SUSAN NEKESA WANGILA…………………………….5TH RESPONDENT
RULING
1. Before this Court is an application by way of Notice of Motion dated 7th January 2025 and brought under Section 79G, 95, 1A, 1B, 3 & 3A of the Civil Procedure Act and all other enabling provisions of the Law. The Applicant seeks the following orders: -
a. That the Applicant be granted leave to lodge an appeal out of time against the Judgement of Hon. G. Adhiambo-Senior Principal Magistrate delivered on 5th October 2023, in Kimilili CMC Succ. Cause No. 184 of 2018.
b. That costs of this application be provided for.
2. The application is premised on the grounds that judgement was delivered on 5th October 2023; that aggrieved by the said judgement the Applicant desires to appeal against the same; that since then the Applicant has been unwell and is still undergoing treatment; that the Applicant’s failure to appeal within the statutory period as provided under law was not deliberate, but due to the fact that he was not able to get the certified copies of the Court proceedings and judgement on 13th December 2024; that the Applicant has an arguable appeal.
3. Patrick Wambilianga Wasike, swore an Affidavit supporting the Motion application on 7th January 2025. He stated that he was the Petitioner in Kimilili CMCC SUCC Cause No. 184 of 2018 and that on 12th October 2023, he sought for the certified copies of the Court proceedings and judgement in the matter, but the same was only availed to him on 13th December 2024. The appeal raises serious issues and the delay in filing the appeal was unintentional and beyond the Applicant’s control as he was unwell and unable to lodge the same.
4. Metrine Bulenywa Wasike, the 1st Respondent herein filed a Replying Affidavit sworn on 17th March 2025, on her own behalf and on behalf of the other Respondents. She deposed that she is aware that the Court will base its decision of granting leave to appeal out of time on the following ingredients: length of delay, reason for the delay, chances of the appeal succeeding and the degree of prejudice on the Respondent if the application is granted. She stated that with regards to the length of delay, the judgement in Succession Cause 184 of 2018 was delivered on 5th October 2023, and the Court distributed the deceased estate equitably amongst all the beneficiaries and that the Applicant is seeking leave after 1 ½ years. That the reason of delay only demonstrates that the Applicant was unwell even prior to the delivery of the lower Court judgement and his condition did not incapacitate him in way to justify the delay, and that the availed annexure PWW4 shows he was seen as an out-patient in the facility and discharged on the same day. That the chances of his appeal succeeding is none existent as the lower Court noted in its judgement that all the beneficiaries to the estate of the deceased were in agreement to the proposed mode of distribution in exception of the Applicant and that his draft memorandum of appeal wishes this Court to uphold his proposed mode of distribution which all the beneficiaries were opposed to. That the Respondents agree that they have already commenced execution of Grant as confirmed by the lower Court at the Land Registrar and the process is time consuming and costly for the Applicant to frustrate their execution efforts. That the allegations that the Applicant only got the certified copy of proceedings and judgement on 13th December 2024, yet the annexure marked PWW 2(b) confirms that the same were certified on 4th April 2024, clearly shows the Applicant’s conduct is contrary to the dints of equity, that he who seeks equity must come with clean hands.
5. In response to the Replying Affidavit, Patrick Wambilianga Wasike, filed a Further Affidavit sworn on 14th April 2025. He reiterated that he was diagnosed with secondary hypertension and as a result of the same could not lodge his appeal within the set statutory time and that there was no consent on distribution that was filed by the beneficiaries regards to the estate of the deceased in Kimilili CMCC SUCC Cause No. 184 of 2018 matter. That it is clear from the judgment of the lower Court that it adopted the proposed mode of distribution by the Objector and that his proposed mode of distribution was not opposed by all the Beneficiaries to the estate of the deceased. He attached the Affidavit sworn by Boniface Wasike Masibo, his co-administrator, sworn on 17th April 2025, wherein he stated that he supports the Applicant’s application for leave to appeal out of time.
6. The parties were directed to canvas the application by way of written submissions. Only the Applicant complied with the Court directives. Counsel for the Respondents filed written submissions but with regards to a totally different matter.
7. Having considered the Applicant’s application, the Replying Affidavit by the Respondents in opposition, the Further Affidavit and the Applicant’s written submissions, the main issue arising for determination is whether the Court should grant leave to the Applicants to file the appeal out of time;
8. Section 79G of the Civil Procedure Act is the operative part in answering the question whether the prayer to enlarge time to file the appeal is merited. Section 79G of the Civil Procedure Act provides that:
“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.”
9. From the provision above, it is noteworthy that the phrase used is “an appeal may be admitted out of time”. This therefore means the Court has discretion to allow admission of appeal out of time. However, the intended appeal ought to have already been filed before or together with an application seeking leave to extend time for filing an appeal. In Mugo & others v Wanjiru & another [1970] EA 482 the Court stated as follows:-
“Clearly, as a general rule the filing and service of the notice of appeal ought to be regularized before or at least at the same time as an application is made to extend the time for filing the record and the fact that this has not been done might be a reason for refusing the application or only allowing one on terms as to costs. But it does not mean that such an application must be refused.”
10. The decision whether or not to grant leave to appeal out of time or to admit an appeal out of time is an exercise of discretion by court. Some of the factors that aid Courts in exercising the discretion whether to extend time to file an appeal out of time were suggested by the Court of Appeal in Thuita Mwangi v Kenya Airways Ltd [2003] eKLR. They include the following:
i. The period of delay;
ii. The reason for the delay;
iii. The arguability of the appeal;
iv. The degree of prejudice which could be suffered by the if Respondent the extension is granted;
v. The importance of compliance with time limits to the particular litigation or issue; and
vi. The effect if any on the administration of justice or public interest if any is involved.
11. The Ruling of the lower Court in which the Applicant wishes to appeal on was delivered on 5th October 2023, while the present application was filed on 9th January 2025, a period of almost 1 ½ years after the lapse of the 30 days required by the law on appeals. The Applicant argues argue that the delay was occasioned by delay in obtaining Court proceedings and Judgement and that he was also unwell, and undergoing treatment.
12. On my perusal of the availed certified Court proceedings, it is clear that the same were availed to the Applicant on 4th April 2024, and the medical record availed indicated that he was been handled as an outpatient and still had the capability to issue the requisite instructions on his appeal to his Counsel.
13. In the Court of Appeal decision in the case of Edith Gichugu Koine v Stephen Njagi Thoithi [2014] eKLR where, although Odek JJA was dealing with an Application brought under the Court of Appeal Rules on extension of time to Appeal, the guidelines he gave are very much applicable herein. He stated as follows:
“8.……. There can be no doubt that the discretion I have to exercise under rule 4 is unfettered and does not require establishment of “sufficient reasons”. Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted, and whether the matter raises issues of public importance, amongst others – See FAKIR MOHAMED V JOSEPH MUGAMBI & 2 OTHERS, Civil Application Nai. 332 of 2004 (unreported). There is also a duty now imposed on the Court under sections 3A and 3B of the Appellate Jurisdiction Act to ensure that the factors considered are consonant with the overriding objective of civil litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the Court.”
14. I have considered the draft Memorandum of Appeal. The Applicant contends that the adoption of the Objectors proposed mode of distribution by the trial Court with regards to land parcels L.R No. Bokoli/Chwele/117 and L.R No. Bokoli/Chwele/118 was contrary to the wishes of the deceased person as he had already distributed the same to the beneficiaries of the 1st and 2nd houses. Also, the failure by the Court to consider that land parcel L.R No. Bokoli/Chwele/118 was subject to litigation in Kakamega HCC Suit No. 75 of 1985 and Eldoret Appeal No. 351 of 2014. I find that these are arguable issues. I am alive to right of the Applicant to Access to Justice under Article 48 of the Constitution of Kenya but this must be read together with an Article 159(2)(b) of the same Constitution which provides for fair hearing and expeditious hearing of cases. I find that it would be in the interests of justice to grant the Applicant leave to appeal out of time as the Respondents will not prejudiced by this due to the inordinate delay.
15. In the upshot, the application dated 7th January 2025 has merit and is thus allowed with costs to the respondents assessed at Ksh 30,000, payable within 45 days from the date hereof and in the event of default execution to issue.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 30Th day of September 2025.
M.S.Shariff
Judge
In the presence of:
Ms Okasa h/b for M Murunga for the Applicant
Ms Buluma h/b for Ms Mwangi for the respondents
Peter Machoni – court Assistant
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