Kipyegon & another v Kirui & 2 others

3. The matter proceeded to hearing by way of adavit evidence and written submissions. The Petitioners were represented by the Firm of Mitei Kirui & Co. Advocates while the Protestors were represented by the Law Firm of Mutai J.K & Kirui Advocates LLP. In the judgement delivered on 12th March, 2026, Sergon J. stated as follows in the denitive paragraphs 34 and 35: “ 34. The summons for conrmation of grant dated 22nd April 2021 seeks conrmation of the grant on the administrators’ terms. For the reasons I have given, I am not persuaded that the administrators’ proposed mode of distribution is fair and equitable. It omits assets. It excludes a rightful beneciary. It is skewed in favour of the 2nd household. 35. In the end, I make the following orders: a. The 1st protest by Mike Kipngeno Korir is hereby allowed. The grandchildren of Zakayo Kirui are entitled to inherit their late father’s share of the estate by representation under Section 41 of the Law of Succession Act. b. The 2nd protest by Kibet Jackson Kirui is hereby allowed. c. The summons for conrmation of grant dated 22nd April 2021 is hereby allowed and distribution of the estate should be done as proposed in the adavit of the 2nd Protestor. (e) Each party shall bear their own costs.” 4. The Applicants are aggrieved by that judgement and desire to appeal against it to this Court but nd their path hampered by a procedural road block. They did not lodge a notice of appeal within 14 days after delivery of that judgement as prescribed by Rule 77[2] of the Court of Appeal Rules 2022. They say they were not informed when the judgement was delivered and only learnt about it in July this year from Willy Kipgetich Kirui the 2nd Respondent. 5. In a bid to remove that procedural impediment they have brought the instant application under Rule 4. The application was led under a certicate of urgency and is founded on the grounds on the face of the notice of motion, supported by two adavits sworn by Elizabeth Wangare Belyon on 12th July 2026 and 31st August, 2026. The Applicants also rely on written submissions dated 3rd September, 2026 and cited case law. 6. Essentially the Applicants contend that the delay in ling the notice of appeal within the prescribed period was not deliberate, contumelious or intended to obstruct or delay the administration of justice but was solely caused by inadvertence and mistake on the part of their previous advocates, Mitei Kirui & Co. Advocates who failed to inform them of the delivery of the judgement. That they only got to know about the judgement on 1st July 2026, from Wily Kirui one of the administrators. That they then appointed their present counsel who took up the matter and lodged the current application. They say that they have an arguable appeal and will be prejudiced unless time is extended to enable them lodge the notice of appeal outside the prescribed period. That they have suciently explained the delay and the court has unfettered discretion to grant the orders sought. Consequently the Applicants pray that the application be allowed. 7. The application is strenuously opposed by Respondents on grounds set out in the replying adavit sworn on 6th August, 2026 by Kibet Jackson Kirui the 3rd Respondent, with the authority of the 1st and 2nd Respondents. Kibet Jackson Kirui was the 2nd Protester in the succession cause and has now teamed up with the other two who were petitioners in the cause. He asserts that the delay of approximately one hundred and twelve [112] days is inordinate, inexcusable and has not been suciently explained https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1796/eng@2026-09-25 2

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by the Applicants. He says that the 1st and 2nd Respondents who were also represented by M/S Mitei Kirui & CO. Advocates aver through him that they were aware of the delivery of the judgement and its outcome. Though he does not say when they became aware or who made them aware, he nevertheless adds that the1st and 2nd Respondents’ awareness casts doubt on the Applicants’ assertion that they were kept unaware of the judgement by their former advocates. He further contends that the Applicants have failed to provide any plausible explanation for the period between the delivery of the judgement [12th March, 2026] and [1st July 2026] when they say they were informed of the delivery by the 2nd Respondent. 8. According to the 3rd Respondent the presumed unexplained delay demonstrates a lack of diligence on the part of the Applicants to monitor the progress of their case with their former advocates, that it is not sucient for the Applicants to attribute the delay to the omission or inaction of their former advocates. That the Applicants had a duty to diligently follow up on the progress of their case and failure to do so for over 3 months demonstrates a lack of diligence ;and the absence of a satisfactory explanation for the delay militates against the exercise of the Court’s discretion to extend time in their favor . The Respondents also place reliance on the written submissions dated 9th September, 2026 and cited case law. 9. I have carefully considered the two divergent positions advanced by the parties to this application both in the adavits and the rival submissions. The only area they seem to agree is on the principles and considerations that a judge seized of an application for extension of time should apply in determining the question whether or not to grant time. The authorities are settled on both fronts. The jurisdiction to extend time is discretionary and unfettered. The relief of extension of the time prescribed by the Rules is an equitable remedy not a right and the would be successful supplicant must give a plausible and satisfactory explanation for the delay to the court in order to unlock its indulgence. 10. Having considered the material presented before me, I am on a balance persuaded that the explanation given for the delay by the Applicants is both plausible and satisfactorily for the following reasons: First there is evidence on the face of the judgement that their former advocates did not attend court on 12th March, 2026 when judgement was delivered. The record shows that only Mr. Evanson Kirui for the Protestor attended court and there was no appearance for the Petitioners. Secondly, there is evidence that the Applicants formally complained and sought an explanation for the failure to inform them of the delivery of the judgement from their previous advocates in a letter dated 13th July 2026 [Exh EB 4] in the supporting adavit of Elizabeth Wangare Belyon. 11. That letter did not elicit any response from the Applicants previous advocates. Thirdly the only communication from the Applicants previous Advocates to the Applicants informing them of the delivery of the judgement is a letter dated 15th July, 2026 [EXH. EB-6] in the supplementary adavit of Elizabeth Wangare Belyon. The letter is on the letter head of Mitei Kirui & Co Advocates and reads: “ RE: Kericho High Court Succession No. 371 of 2015 Estate Of Elijah Kipkurui Belyon [Deceased] We refer to the above matter. The court delivered its judgement on distribution and agreed with the Protestor’s [Jackson Kirui] mode of distribution. The matter has been slated for 22nd September, 2026 to conrm completion of the transmission. Kindly avail the documents listed in the attached letter from the Protestor’s advocate for purposes of completing succession process. In the meantime, we are preparing our bill of costs which we shall share with you next week.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1796/eng@2026-09-25 3

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12. The letter is signed by MR. Mitei Kirui Advocate and does not indicate when the judgement was delivered. Tellingly the letter from the Protestor’s Advocate alluded to in the letter of 15th July, 2026 is dated 19th May, 2026 from Mutai J.K & Kirui Advocates LLP to M/S Mitei Kirui & Advocates. It is this latter letter that informed the Applicants’ previous advocates that judgement was delivered on 12th March 2026, the terms of that judgement and made a demand for certain documents to facilitate the process of transmission. This begs the question why the Applicants advocates would sit on such a letter until 15th July, 2026 without bringing to the Applicants attention. 13. Lastly, the 2nd Respondent has not controverted the positive assertion by the Applicants that he is the one who informed them about the judgement on 1st July, 2026. It is also noteworthy that the 1st and 2nd Respondents have now teamed up with the 3rd Respondent in these proceedings against the Applicants their fellow petitioners in the Succession Cause and are represented in these proceedings by the advocate for the 3rd Respondent who was their common adversary before the High Court. In these circumstances, I am satised that the Applicants did not become aware of the judgement intended to be appealed until 1st July 2026 and their application seeking extension of time was led with the requisite promptitude under certicate of urgency. 14. In the end, I am persuaded that the application for extension of time is merited and allow it. I direct that the Applicants shall le and serve their notice of appeal within 14 days, following delivery of this ruling and thereafter le and serve the record of appeal within 30 days after lodging the Notice of appeal. The costs of the application shall abide the intended appeal. Orders accordingly. DATED AND DELIVERED AT NAKURU THIS 25TH DAY OF SEPTEMBER,2026. MURUNGI B. KAIRARIA …………………………….. JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1796/eng@2026-09-25 4

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