Samuel Njora Gitau & 2 others v Maria Wangari Gathere & 2 others

The intended appeal arises from succession proceedings governed by the Law of Succession Act, whose section 47 does not confer an automatic right of appeal to the Court of Appeal. Consistent authority establishes that an appeal lies only with leave of the High Court or, if refused, of the Court of Appeal. Since the applicants had not demonstrated compliance with this prerequisite, the Court had no option but to down its tools and strike out the application as premature, notwithstanding the non-opposition by the respondents.

Relying on Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd and Francis Macharia Karanja v Virginia Muthoni Karanja, the Court held that jurisdiction flows from the Constitution or statute and cannot be assumed or donated by parties. A jurisdictional issue goes to the heart of the Court's mandate and must be dealt with at the earliest opportunity, whether raised by the parties or detected by the Court itself. Non-opposition to the application could not cure the absence of jurisdiction.

The Court restated the principles from Nicholas Kiptoo Arap Korir Salat v IEBC: extension of time is not a party's right but an equitable remedy available to a deserving party at the court's discretion; the applicant bears the burden of laying a basis to the court's satisfaction; the discretion is exercised case by case having regard to the length of the delay, its explanation, prejudice to the respondent, whether the application was brought without undue delay, and public interest in certain categories of cases.