Aboge v Aboge & 2 others (Civil Application E057 of 2025) [2025] KECA 1285 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether sufficient cause for the delay in filing the application for leave to appeal has been demonstrated
- 2.Whether the extension of time to file an application for leave to appeal is merited
- 3.Whether the respondents will suffer prejudice if the extension is granted
- 4.Whether the intended appeal has an arguable chance of success
Key legal issues
#Whether sufficient cause for the delay in seeking leave to appeal out of time was demonstrated
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).
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.
Whether the respondents would suffer prejudice if the extension were granted
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.
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.
Legal principles established
#- 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
#- 1.The application dated 8th April 2025 is found to be merited
- 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.There shall be no order as to the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
As this is a family- related dispute, there shall be no order as to the costs of the application.
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.
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.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.