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Court of AppealDismissedCivil Application (Motion) arising from Meru High Court Succession Cause No. 667 of 2014· [2025] KECA 1371 (KLR)

Gulzar Abdul Wais v Yasmin Rashid Ganatra & 3 others

Court of Appeal of Kenya
18 July 2025
1,584 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to let a woman appeal a 2021 succession judgment because she waited nearly four years and was not candid about her role in executing it.

What this practically means

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Executive summary

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This is a ruling by a single Judge of the Court of Appeal at Nyeri (Ole Kantai, JA) on a Motion dated 24th April 2025 by Gulzar Abdul Wais seeking leave to appeal out of time against the judgment of Gikonyo, J in Meru High Court Succession Cause No. 667 of 2014 delivered on 28th July 2021, in which the deceased's estate, including LR No. Ntima/Igoki/5685, was distributed. The applicant alleged that the High Court had interfered with the testator's testamentary freedom and blamed a former lawyer for failing to lodge an appeal. The 1st respondent countered that the parties had been actively implementing the judgment for nearly four years, including steps to register the property under the Sectional Properties Act, and that the application was an afterthought. Applying the Fakir Mohamed v Joseph Mugambi principles, the Judge found the delay of nearly four years inordinate and unexplained, observed that the applicant had been economical with the truth given her active participation in executing the grant, and noted that no leave to appeal in the succession proceedings had been shown to have been sought. The Motion was dismissed with costs to the respondents. The decision is not a binding appellate holding on the merits; it is an interlocutory discretionary ruling illustrating that candour and reasonable explanation of delay are prerequisites to extension of time under Rule 4.

Key legal issues

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01

Whether the delay of nearly four years in seeking leave to appeal out of time was satisfactorily explained

Holding

No: the applicant was economical with the truth, the matter had been active in executing the judgment throughout, and the engagement of a new lawyer was no excuse

Reasoning

The court examined the correspondence and the 1st respondent's chronology showing that since the 28th July 2021 judgment the parties had been engaged in implementing the grant, including conversion of the suit property into a sectional property. The applicant's claim that her former lawyer failed to act did not account for the prolonged inaction. The application was dated 24th April 2025, almost four years after judgment, and the letter from the new advocates was written more than a year after judgment and was of no assistance.

p. 4
02

Whether the applicant deserved the exercise of the court's discretion

Holding

No: an applicant who is less than truthful with the court does not deserve a favourable exercise of discretion

Reasoning

The court found that the applicant's account - that she had instructed her lawyers to appeal but they did nothing - concealed the fact that the matter had remained active since judgment, with the applicant participating in execution of the grant. Candour to the court is a condition of discretionary relief. Combined with the inordinate and unexplained delay, the applicant failed to meet any threshold warranting extension of time under the Fakir Mohamed principles.

p. 4

Legal principles established

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  • Extension of time under Rule 4 is a discretionary exercise governed by relevant but non-exhaustive factors including the period of delay, the reason for delay, the chances of the appeal succeeding, and prejudice to the respondent; an applicant who is not truthful with the court does not deserve the exercise of discretion in their favour
  • Instructing a new lawyer while the parties are actively executing a judgment is not a reasonable excuse for delay in seeking leave to appeal
  • Leave to appeal is necessary to appeal to the Court of Appeal in succession proceedings

Court orders

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  1. 1.The Motion dated 24th April 2025 seeking leave to appeal out of time is dismissed
  2. 2.Costs of the application awarded to the respondents
On appeal from
High Court of Kenya at Meru
Succession Cause No. 667 of 2014
Jurisdiction invoked
Appellate jurisdiction of a single Judge of the Court of Appeal under Rule 4 of the Court of Appeal Rules (extension of time)

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, "Gulzar Abdul Wais v Yasmin Rashid Ganatra & 3 others", Case Analysis (2025). Civil Application (Motion) arising from Meru High Court Succession Cause No. 667 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1371/eng@2025-07-18

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