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Court of AppealPartially AllowedNotice of Motion dated 7th May, 2025 (arising from Kisumu Succession Cause No. 181 of 1990)

Ogwang v Ogwang (Civil Application 071 of 2025) [2025] KECA 2009 (KLR)

Court of Appeal of Kenya
18 November 2025
ASAsike-Makhandia
863 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal gave Tobias Ogwang 45 days to file a late appeal in a family inheritance dispute, but refused to consider his stay request.

What this practically means

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Executive summary

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By a Notice of Motion dated 7th May 2025, Tobias Ogwang sought stay of execution of the judgment and decree delivered on 7th February 2025 in Kisumu Succession Cause No. 181 of 1990 (Estate of Leonard Ogwang, Deceased) and leave to appeal out of time. Asike-Makhandia JA, sitting as a single judge of the Court of Appeal at Kisumu, held that he had jurisdiction only over the extension-of-time prayer, stay of execution being reserved to a full bench. The applicant explained that he was misled by the High Court registry: the presiding judge was transferred to Bungoma, and the Court Tracking System indicated judgment would be delivered on 31st March 2025, when in fact it had been delivered on 7th February 2025. Upon learning this, he promptly instructed his advocates to complain to the Deputy Registrar. The respondents opposed, contending the applicant was represented throughout, that the distribution was fair, and that he was prolonging the dispute while occupying the family property. The court applied the principles in Nicholas Kiptoo Korir arap Salat v IEBC & 7 Others [2014] eKLR, holding that a three-month delay was not inordinate, the applicant moved with the shortest possible time, and he possessed a constitutional right to exhaust the appellate process, especially in a family inheritance dispute. The application was allowed, with 45 days granted to initiate the intended appeal, costs in the appeal.

Questions the Court framed

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

  1. 1.Whether the applicant should be granted leave to file an appeal out of time
  2. 2.Whether the delay of about three months has been satisfactorily explained

Key legal issues

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01

Extension of time to file an appeal

Holding

The application was allowed: the delay of about three months was not inordinate, the applicant moved the Court promptly upon learning of the judgment, and he has a right to exhaust the appellate process, particularly in a family inheritance dispute

Reasoning

Applying the Salat v IEBC principles, the court found the delay explained by the registry's failure to update the Court Tracking System, noted the applicant acted immediately upon learning of the judgment, held the three-month delay not inordinate, and emphasized the applicant's constitutional right of appeal and entitlement to his day in court in an inheritance dispute.

p. 2

Legal principles established

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  • A single judge of the Court of Appeal has jurisdiction only over extension of time to appeal, not stay of execution, which is reserved for a full bench

Court orders

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  1. 1.Application allowed; applicant granted forty-five (45) days from the date of the ruling to initiate his intended appeal
  2. 2.Costs shall be in the appeal

The bench

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

AS
majority

Wrote the judgment

On appeal from
High Court of Kenya
Kisumu Succession Cause No. 181 of 1990 (Estate of Leonard Ogwang, Deceased)
Jurisdiction invoked
Jurisdiction of a single judge of the Court of Appeal to grant extension of time to file an appeal (stay of execution reserved to a full bench)

Relief refused

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Stay of execution of the judgment and decree of 7th February 2025

A single judge has no jurisdiction to grant stay of execution; that is a preserve for a full bench of the Court

p. 1

Costs

Costs shall be in the appeal.

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.

I accordingly allow the application and grant the applicant forty-five (45) days from the date of this ruling to initiate his intended appeal. Costs shall be in the appeal.
p. 3Final orders - extension of time granted
Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court
p. 2Principles governing extension of time (Salat v IEBC)
I have no jurisdiction to deal with the prayer for stay of execution as that is a preserve for a full bench of this Court.
p. 1Single judge jurisdiction

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, "Ogwang v Ogwang (Civil Application 071 of 2025) [2025] KECA 2009 (KLR)", Case Analysis (2025). Notice of Motion dated 7th May, 2025 (arising from Kisumu Succession Cause No. 181 of 1990). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2009/eng@2025-11-18

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