Arthur Lugusa M'mbifwa v Phanice Kangah Imbwenya & 6 others

3. The appointment was challenged vide an application for revocation dated 30th January 2019 which was filed by the 1st, 2nd, 3rd and 4th respondents who were the surviving daughters of the deceased. The application for revocation was heard and determined by R.K Limo, J and a judgement, which is the basis for this application, was rendered on 9th October 2025. The grant was confirmed and directions were given for the estate of the deceased to be distributed equally among all the beneficiaries, irrespective of gender. 4. The applicant lodged and served a notice of appeal dated 13th October 2025; he then requested for typed proceedings which were issued on 11th November 2025. At the same time, the applicant filed an application in the High Court seeking leave to appeal to this Court. The applicant also sought and obtained interim orders of stay of execution before the High Court. 5. Pursuant to the decision of the Supreme Court in Wandi vs Muchira (Suing as the Administrator Ad Litem of Jane Muthoni Muchira [2026] KESC 29 (KLR) clarifying that no leave is required for a party in a succession dispute, to appeal to the Court of Appeal, the applicant abandoned his application before the High Court. 6. Subsequent to this, the applicant is now before this Court seeking extension of time to file an appeal out of time. The application is premised on the grounds set out on the face of the application and buttressed in the supporting affidavit of the applicant, all dated 25th May 2026. Similar grounds are restated in the applicant’s submissions dated 21st June 2026. 7. The gravamen of the applicant’s plea is that the delay in filing the appeal was occasioned by the application for leave to appeal which was pending determination before the High Court. 8. Despite due service, the respondents did not respond to the application. 9. I have considered the motion, the supporting affidavit and submissions filed by the applicant. The guiding principles in considering an application for extension of time are well established. In Leo Sila Mutiso vs Rose Hellen Wangari [1999] 2 EA 231 it was affirmed that the factors to take into account in determining an application to extend time include; the length of delay, the reason(s) for the delay, whether the appeal is arguable, and if the opposing party will be prejudiced. 10. In the present application, the applicant has explained that subsequent to the High Court judgement, he took active steps to initiate the appeal by lodging an application for leave to appeal to this Court. I note that the applicant could not take any further step before determination of this application, which remained pending before the High Court until the Supreme Court clarified the law on the issue of leave to appeal in succession matters. 11. In the circumstances, I have no difficulty in reaching the finding that the reason advanced for the delay is plausible and the period of delay, being less than one year is not inordinate. As to whether the appeal will succeed, that is a matter for a full bench of this Court. The respondents did not respond to the application and there is therefore nothing to demonstrate any prejudice they would suffer by enlargement of time in favour of the applicant. 12. For the foregoing reasons, the application dated 25th May 2026 is allowed. The applicant is directed to file and serve his appeal within the next 45 days from the date of this ruling. 13. As the application was undefended, I will make no order for costs. DATED AND DELIVERED AT ELDORET THIS 31ST DAY OF JULY, 2026. L.M. NDOLO https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1631/eng@2026-07-31 2

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…………………… 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/2026/1631/eng@2026-07-31 3

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