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Court of AppealAllowedCivil Application (unnumbered Notice of Motion dated 8th April 2025, arising from Migori HCC Succ Cause No. 405 of 2014)

Aboge v Aboge & 2 others (Civil Application E057 of 2025) [2025] KECA 1285 (KLR)

Court of Appeal of Kenya
11 July 2025
2,075 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal gave a widow another chance to appeal an estate case, ruling that her lawyer's date-typing mistake was an acceptable reason for filing late.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kisumu (P. Nyamweya JA) on a Notice of Motion dated 8th April 2025 by Lucy Wambui Aboge, a widow of the late George Aboge Owallo, seeking enlargement of time to file an application for leave to appeal against the High Court at Migori (R. Wendo J) judgment of 20th October 2023 distributing the estate. Her earlier application for leave to the High Court was refused by A. Onginjo J on 31st October 2024; a subsequent application in this Court (Civil Application E169 of 2024) was struck out on 28th March 2025 because counsel had misdated the High Court ruling by a year, rendering it incompetent under Rule 41(1)(b) of the Court of Appeal Rules, 2022. Applying the Salat and Leo Sila Mutiso extension-of-time principles, the court held that the inadvertent typographical error by counsel constituted sufficient cause, that the delay of about five months was not inordinate given that the prior application would otherwise have been filed within time, and that the respondents would not be unduly prejudiced since they may raise their objections at the hearing of the substantive leave application. The court expressly declined to consider the merits. The application was allowed: the applicant was granted fourteen days to file a fresh application for leave to appeal out of time, and, as a family-related dispute, there was no order as to costs. The 2nd and 3rd respondents did not respond.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether sufficient cause for the delay in filing the application for leave to appeal has been demonstrated
  2. 2.Whether the extension of time to file an application for leave to appeal is merited
  3. 3.Whether the respondents will suffer prejudice if the extension is granted
  4. 4.Whether the intended appeal has an arguable chance of success

Key legal issues

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01

Whether sufficient cause for the delay in seeking leave to appeal out of time was demonstrated

Holding

Yes. The delay of approximately five months was attributable to a counsel's typographical error in stating the date of the High Court ruling, and but for that error the prior application was filed in time (12 days after the ruling).

Reasoning

The court traced the chronology: the High Court refused leave on 31st October 2024; the prior application in Civil Application E169 of 2024 was filed on 12th November 2024, within 12 days, but was struck out solely because counsel misdated the ruling by a year. The instant application followed within about 10 days of the striking-out ruling. The error was inadvertent, not controverted, and the delay was not inordinate. Sufficient cause was therefore shown under Rule 4 principles.

p. 4
02

Whether the respondents would suffer prejudice if the extension were granted

Holding

No. The respondents retain the opportunity to raise all their objections, including arguability and any prejudice, at the hearing of the substantive application for leave to appeal.

Reasoning

The court held that what is before it is only an extension-of-time application, not the merits of the intended appeal. Any prejudice the respondents foresee can be ventilated when the substantive leave application is heard, so no undue prejudice arises from merely allowing the applicant a fresh chance to seek leave within fourteen days.

p. 4

Legal principles established

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  • Extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court, with the applicant bearing the burden of explaining the delay and showing absence of prejudice.
  • There is no fixed maximum period of delay; the delay must be satisfactorily explained, and a plausible explanation unlocks the court's discretion.

Court orders

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  1. 1.The application dated 8th April 2025 is found to be merited
  2. 2.The applicant is granted leave to file an application for leave to appeal out of time within fourteen (14) days of the date of delivery of the ruling
  3. 3.There shall be no order as to the costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court of Kenya at Migori
Migori HCC Succ Cause No. 405 of 2014
Jurisdiction invoked
Rule 41(1)(b), 44(1) & (2) and 55(1) of the Court of Appeal Rules, 2022; Rule 73 of the Probate and Administration Rules; Article 159(2)(a), (b), (d) and (e) of the Constitution of Kenya, 2010

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Consequently, the application dated 8th April 2025 is found to be merited, and the applicant is accordingly granted leave to file an application for leave to appeal out of time, within fourteen (14) days of the date of delivery of this ruling.
p. 4Final orders - extension of time granted
As this is a family- related dispute, there shall be no order as to the costs of the application.
p. 4Costs order
I am therefore persuaded that suficient cause for the delay in filing the application for leave has been demonstrated, and that the delay was not inordinate in the circumstances.
p. 4Sufficient cause for delay
the application before the Court for determination is for extension of time and the Court will therefore restrain from a consideration of any of the merits or otherwise of the respective parties’ cases that were averred to.
p. 3Scope of extension-of-time applications

Issues in the judgment

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minor

Internal inconsistency in the dates of the counsel's typographical error: paragraph 2 records the error as '31st October 2023 instead of 31st October 2024', paragraph 12 records it as '23rd October 2023 instead of 23rd October 2024', while paragraph 13 quotes the struck-out ruling referring to leave being declined on '31st October, 2023'.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Aboge v Aboge & 2 others (Civil Application E057 of 2025) [2025] KECA 1285 (KLR)", Case Analysis (2025). Civil Application (unnumbered Notice of Motion dated 8th April 2025, arising from Migori HCC Succ Cause No. 405 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1285/eng@2025-07-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.