Benard v Kiprotich & another (Civil Application E042 of 2026) [2026] KECA 1453 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KECA 1453 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT ELDORET CIVIL APPLICATION E042 OF 2026 PM GACHOKA, JA JULY 17, 2026 BETWEEN MARY CHEROTICH BENARD ............................................................. APPLICANT AND MICHAEL KIPROTICH ............................................................... 1ST RESPONDENT MARY ANN JERUTO BIWOTT ................................................. 2ND RESPONDENT (An application for extension of time to appeal against the Ruling and order of the High Court of Kenya at Kitale (R. Limo, J.) delivered on 12th March, 2026 in HCCA No. E64 of 2024) RULING 1. 2. The Notice of Motion before me for my determination is dated 19th April 2026. It is stated to be brought under Rule 4 of the Court of Appeal Rules and section 3A of the Appellate (sic) Jurisdiction Act seeking the following reliefs: a. That the Applicant be granted leave to file and serve a notice of appeal together with the accompanying letter requesting for proceedings out of the stipulated time in respect of a ruling delivered by Honourable Justice R.K Limo in Kitale HCC Appeal Number E064 of 2024 and that the time for filing and serving the notice of Appeal and letter for proceedings be extended. b. Costs of and incidental to the application do abide the result of the intended Appeal. The application is based the supporting affidavit of the applicant, sworn on 19th April 2026. The facts giving rise to the application as set out therein are that the dispute emanated by way of Succession proceedings in Kitale Magistrates’ Court Succession Cause No. 155B of 2023. The applicant states that the 1st respondent filed the Succession Cause without involving her. She filed objection proceedings but she was dissatisfied with the ruling of the magistrate. She then filed an appeal in the High Court and sought an order for stay of proceedings but was unsuccessful. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1453/eng@2026-07-17 1
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3. The applicant contended that the ruling was delivered in the absence of her advocate, who was at the time engaged in an interview with the Judicial Service Commission. She further stated that she was not able to contact the advocate in good time in view of the engagement that the advocate had with the Judicial Service Commission. 4. She argued that the advocate tried to file a notice of appeal and a letter requesting for proceedings on 1st April 2024 but the Deputy Registrar declined to sign the same, indicating that it was filed out of time. She urged that the failure to file the notice of appeal in time was not deliberate and prayed that leave be granted. 5. Notably, there is no response on record by the respondents and therefore the facts are not challenged, though I would have expected the advocate to file an affidavit to depone to the issues raised by the applicant. 6. The applicant also filed written submissions dated 27th April 2026. In summary, she urged this Court to exercise discretion in her favor as she had demonstrated compelling reasons to warrant the issuance of the relief sought. Further, the appeal is arguable and no prejudice would be sufiered by the respondents if time is enlarged. 7. The discretionary power to file an appeal out of time is set out in Rule 4 of this Court’s Rules. The applicant is walking on a well- trodden path and the governing principles have been restated in many decisions of this Court. In Wasike vs. Swala [1984] KLR 591, the Court expressed itself as follows: “ As Rule 4 now provides that the Court may extend the time or such terms as it thinks just, an applicant must now show, in descending scale of importance, the following factors: 8. a. That there is merit in his appeal. b. That the extension of time to institute and/or file the appeal will not cause undue prejudice to the respondent; and c. That the delay has not been inordinate.” I have considered the application and the grounds enunciated therein. I find that the applicant deserves the exercise of discretion for the reason that the delay, which is not inordinate, has been explained. Accordingly, I direct the applicant to file and serve its notice of appeal within the next 14 days from the date of this order. Upon filing the notice of appeal, the applicant will file and serve the memorandum of appeal within 60 days. The costs of the application shall abide the outcome of the appeal. DATED AND DELIVERED AT ELDORET THIS 17TH DAY OF JULY, 2026. M. GACHOKA C.Arb, FCIArb. ....................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed Deputy Registrar https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1453/eng@2026-07-17 2
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