1. The court below delivered a ruling on 30th July 2025. The ruling confirmed the directions given by the court on 13th March 2025, under which it was decided that the Majengo property on Title No. Mombasa Block XV/525 would be vested in the respondents to the exclusion of the applicants, while the applicants would receive Title No. Mombasa/Likoni/6238.
2. Being aggrieved by the said decision, the applicants intend to appeal. They are apprehensive that the respondents are about to execute the impugned ruling. Noting that they are late, as an appeal is, under the Kadhis' Courts (Procedure and Practice) Rules, 2020, required to be filed within 30 days of delivery of the impugned decision, the applicants seek leave to file an appeal out of time. They contend that the appeal raises substantial issues of law that merit the court's consideration and that the delay was caused by a lack of funds. They aver that the respondents will not be prejudiced if the orders sought are granted and that it would be in the interests of justice to allow the application.
3. The application is opposed. The respondents, through their counsel, Idris Ahmed, filed grounds of opposition dated 30th November 2025, in which they challenged the application's competence, contending that it was an afterthought, had no basis in law, and that the applicants had attempted to mislead the court. It was also stated that the application was an abuse of the court's process and was manifestly contrary to the interests of justice.
4. The 4th respondent made a sworn deposition. Her reply affidavit was sworn on 7th November 2025. She deposed that the application sought orders prejudicial to the respondent. She argued that the applicants were already in control of the Likoni property and sought to enjoy the Majengo property as well. She contended that the Kadhi court delivered a judgment on 2nd May 2024, by which the beneficiaries and their shares were determined. Subsequently, Farida applied for distribution of the property. Farida’s application was determined by the Hon. Kadhi. Although the applicants contend that they filed an affidavit in the court below, the affidavit appears to have been filed out of time and without leave of the Court, and was therefore disregarded.
5. The application was canvassed by way of oral submissions in court on 2nd March 2025. Thereafter, the court reserved its ruling until 12th May 2026.
6. There is no appeal at present. The applicants seek leave to file an appeal out of time. Should this court grant them leave?
7. When deciding whether to grant leave to appeal out of time, courts take into account the length of the delay, the reason for it, the likelihood of the appeal succeeding if the application is granted, and the degree of prejudice to the respondent if the application is allowed. See Leo Sila Mutiso v Rose Hellen Wangari Mwangi; Civil Application No. Nai 255 of 1077 (unreported) and Thuita Mwangi v Kenya Airways Limited [2003] eKLR.
8. The impugned decision was made on 30th July 2025. The application was filed on 21st October 2025, two months and 22 days later. The explanation for the delay is a lack of money. The delay is not unreasonable in light of that explanation. I see no prejudice to the respondents if the application is allowed. The appeal is arguable on a prima facie basis. In the circumstances, I am inclined to grant the applicant leave to appeal out of time.
9. Since there is no appeal at present, I am unable to grant a stay pending appeal. In the circumstances, I decline to grant the applicants' stay pending appeal.
10. In light of the foregoing, the orders that commend themselves to me are:
i The applicants are granted leave to file an appeal out of time. The appeal shall be filed within 30 days of the date hereof. If there is a default in filing an appeal, the leave hereby granted shall lapse and be of no effect; and
ii The application for stay pending appeal is declined.
11. Due to the nature of the matter, I order that the parties shall bear their own costs.
12. It is so ordered.
Dated, Signed and Delivered at Nairobi on this 12th day of May 2026. Delivered virtually through Microsoft TEAMS.
2. Being aggrieved by the said decision, the applicants intend to appeal. They are apprehensive that the respondents are about to execute the impugned ruling. Noting that they are late, as an appeal is, under the Kadhis' Courts (Procedure and Practice) Rules, 2020, required to be filed within 30 days of delivery of the impugned decision, the applicants seek leave to file an appeal out of time. They contend that the appeal raises substantial issues of law that merit the court's consideration and that the delay was caused by a lack of funds. They aver that the respondents will not be prejudiced if the orders sought are granted and that it would be in the interests of justice to allow the application.
3. The application is opposed. The respondents, through their counsel, Idris Ahmed, filed grounds of opposition dated 30th November 2025, in which they challenged the application's competence, contending that it was an afterthought, had no basis in law, and that the applicants had attempted to mislead the court. It was also stated that the application was an abuse of the court's process and was manifestly contrary to the interests of justice.
4. The 4th respondent made a sworn deposition. Her reply affidavit was sworn on 7th November 2025. She deposed that the application sought orders prejudicial to the respondent. She argued that the applicants were already in control of the Likoni property and sought to enjoy the Majengo property as well. She contended that the Kadhi court delivered a judgment on 2nd May 2024, by which the beneficiaries and their shares were determined. Subsequently, Farida applied for distribution of the property. Farida’s application was determined by the Hon. Kadhi. Although the applicants contend that they filed an affidavit in the court below, the affidavit appears to have been filed out of time and without leave of the Court, and was therefore disregarded.
5. The application was canvassed by way of oral submissions in court on 2nd March 2025. Thereafter, the court reserved its ruling until 12th May 2026.
6. There is no appeal at present. The applicants seek leave to file an appeal out of time. Should this court grant them leave?
7. When deciding whether to grant leave to appeal out of time, courts take into account the length of the delay, the reason for it, the likelihood of the appeal succeeding if the application is granted, and the degree of prejudice to the respondent if the application is allowed. See Leo Sila Mutiso v Rose Hellen Wangari Mwangi; Civil Application No. Nai 255 of 1077 (unreported) and Thuita Mwangi v Kenya Airways Limited [2003] eKLR.
8. The impugned decision was made on 30th July 2025. The application was filed on 21st October 2025, two months and 22 days later. The explanation for the delay is a lack of money. The delay is not unreasonable in light of that explanation. I see no prejudice to the respondents if the application is allowed. The appeal is arguable on a prima facie basis. In the circumstances, I am inclined to grant the applicant leave to appeal out of time.
9. Since there is no appeal at present, I am unable to grant a stay pending appeal. In the circumstances, I decline to grant the applicants' stay pending appeal.
10. In light of the foregoing, the orders that commend themselves to me are:
i The applicants are granted leave to file an appeal out of time. The appeal shall be filed within 30 days of the date hereof. If there is a default in filing an appeal, the leave hereby granted shall lapse and be of no effect; and
ii The application for stay pending appeal is declined.
11. Due to the nature of the matter, I order that the parties shall bear their own costs.
12. It is so ordered.
Dated, Signed and Delivered at Nairobi on this 12th day of May 2026. Delivered virtually through Microsoft TEAMS.