Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment (Motion dated 11th June, 2025)

Nderitu v Nderitu (Civil Application E116 of 2025) [2025] KECA 1708 (KLR)

Court of Appeal of Kenya
24 October 2025
SKS. Ole Kantai
723 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal dismissed a late application for leave to appeal in a family estate dispute because it was filed beyond the 14-day deadline with no explanation for the delay.

What this practically means

#

Executive summary

#
This is a single-judge decision (S. Ole Kantai, JA) of the Court of Appeal at Nyeri, delivered on 24th October, 2025, on an application for leave to appeal in a civil matter. The applicant, Ruth Gathoni Nderitu, sought leave to appeal against a ruling of Kizito, J. delivered on 6th May, 2025 in Succession Cause No. 242 of 1997 (Estate of Nderitu Kanyi alias Moses Nderitu Kanyi, deceased), in which the Judge refused her leave to appeal, apparently upon an informal application. Her Motion dated 11th June, 2025, invoked sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rules 4, 41, 43, 44, 45, 47 and 49 of the Court of Appeal Rules, and sought leave to appeal together with an order deeming her notice of appeal dated 6th May, 2025 as duly filed. She argued that the ruling failed to consider her objections to inequality in distribution of the estate, contrary to the principle that distribution of an intestate estate among children should be equal unless special circumstances justify otherwise, and that she had an arguable appeal. The respondent, Janet Kabui Nderitu, opposed the application as defective, an abuse of process, and in contravention of rules 41(1)(b) and (2), and urged that it was designed to delay distribution of the estate. The Court framed a single issue: whether the application was brought as required by rule 41. Holding that the applicant should have approached the Court within fourteen days of the refusal of leave by the High Court, and that the Motion dated 11th June, 2025 was well out of time with no explanation offered for the non-compliance, the Court dismissed the application with costs to the respondent. No authorities were cited and the decision does not disturb the ruling below.

Questions the Court framed

#

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

  1. 1.Whether the applicant brought the application for leave to appeal as required by the Court of Appeal Rules, particularly rule 41

Key legal issues

#
01

Compliance with the 14-day timeline in rule 41 of the Court of Appeal Rules for an application for leave to appeal following refusal of leave by the superior court

Holding

The application dated 11th June, 2025, filed more than 14 days after the refusal of leave by the High Court on 6th May, 2025, was out of time, and the applicant's failure to explain the non-compliance justified dismissal of the application

Reasoning

The ruling intended to be appealed was delivered on 6th May, 2025, with leave refused, apparently upon an informal application. Rule 41(1)(b)(ii) then requires the applicant to approach the Court of Appeal for leave within fourteen days of that refusal. The Motion was dated 11th June, 2025, well outside that window. Even considering the Motion on merit, the applicant was required to explain the non-compliance with the timeliness set in law; no explanation was given, so the Court could not exercise its discretion in her favour.

p. 2

Legal principles established

#
  • Where an application for leave to appeal has been made to the superior court and refused, an application for leave to the Court of Appeal under rule 41(1)(b)(ii) must be made within fourteen days after such refusal, and non-compliance must be explained before the Court exercises its discretion in the applicant's favour

Court orders

#
  1. 1.The application for leave to appeal is dismissed with costs to the respondent

The bench

#

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

SK
majority

Wrote the judgment

On appeal from
High Court of Kenya (succession cause)
Succession Cause No. 242 of 1997 In the matter of the Estate of Nderitu Kanyi alias Moses Nderitu Kanyi (deceased)
Jurisdiction invoked
Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rules 4, 41, 43, 44, 45, 47 and 49 of the Court of Appeal Rules (application for leave to appeal in a civil matter)

Relief refused

#

Leave to appeal against the ruling of Kizito, J. delivered on 6th May, 2025, and deemed filing of the notice of appeal dated 6th May, 2025

The application was filed out of the 14-day period prescribed by rule 41 of the Court of Appeal Rules, and no explanation for the delay was offered

p. 2

Costs

I find the application to have no merit and I dismiss it with costs to the respondent.

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.

My understanding of rule 41 of our rules is that the applicant should then have approached this Court for leave to appeal within 14 days of such refusal.
p. 2Time limit under rule 41(1)(b)(ii) for leave applications to the Court of Appeal after refusal by the superior court
Even if I was to consider the Motion on merit I would still have to be told why the 14 days period required by rule 41 to approach this Court was not met or complied with.
p. 2Requirement of an explanation for non-compliance before exercise of discretion
I find the application to have no merit and I dismiss it with costs to the respondent.
p. 2Final orders - dismissal of the application with costs to the respondent

Issues in the judgment

#
minor

Typographical error in the judgment text ('ofiered' for 'offered')

minor

The judgment does not state the appeal/civil application number under which this Motion was brought; the case number field could only be filled with the date of the Motion

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nderitu v Nderitu (Civil Application E116 of 2025) [2025] KECA 1708 (KLR)", Case Analysis (2025). Not stated in the judgment (Motion dated 11th June, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1708/eng@2025-10-24

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