Muriuki v Ndegwa & 3 others (Civil Application E054 of 2026) [2026] KECA 1965 (KLR) (25 September 2026) (Ruling) Neutral citation: [2026] KECA 1965 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NYERI CIVIL APPLICATION E054 OF 2026 LA ACHODE, JA SEPTEMBER 25, 2026 BETWEEN TIMOTHY GATHAMBO MURIUKI .................................................... APPELLANT AND LYDIA NJOKI NDEGWA .............................................................. 1ST RESPONDENT MARYMARION GATHIGIA MUTUA ....................................... 2ND RESPONDENT MARIAM WANJIKU MURIUKI ................................................ 3RD RESPONDENT JOB NDIRANGU MURIUKI ....................................................... 4TH RESPONDENT (Being an application for extension of time within which to file an appeal from the Ruling of the High Court of Kenya at Nyeri (Kizito J) dated 11th May, 2026 in HCSucc Cause No. 1 of 2026)) RULING 1. Vide a Notice of Motion dated 8th June 2026, which does not disclose the provision of the law under which it is brought, the applicant is seeking leave of the Court to appeal out of time against a ruling delivered on 11th May, 2026 in the High Court of Kenya at Nyeri, by Kizito J, in Nyeri HCSucc Appeal No. 1 of 2025. The appellant lodged a Notice of Appeal against the ruling on the same day. 2. The application is premised on the grounds set out on its face and in the averments in the supporting adavit of even date sworn by the applicant. The grounds are that his appeal was summarily dismissed. That the High Court did not consider that he is also a son of the deceased and is entitled to inherit from the estate of the deceased. Further, that he was born and brought up in the disputed land and is the only one living on it presently. He avers that he has good grounds of the appeal. 3. The main ground for this application is that the applicant applied for certied copies of the proceedings and judgment, to allow them lodge an appeal, and they have not been supplied to date. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1965/eng@2026-09-25 1
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4. The respondent led a replying adavit dated 15th July, 2026 and averred that the applicant has not given good reasons for not ling the appeal on time. In the meantime, the applicant has intermeddled in the estate by maliciously destroying the respondent’s property and chasing away her workers. 5. This application should have been brought under Rule 4 which clothes the Court with the jurisdiction, to extend time. It donates a free and unfettered discretion which however, must be exercised judiciously. The guiding principles in the exercise of that discretion have been stated in numerous decisions. The locus classicus; Leo Sila Mutiso v Rose Hellen Wangari Mwangi (1999) 2 EA 321, set down the following parameters: “ It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general, the matters which this Court takes into account in deciding whether to grant an extension of time are: rst, the length of delay; secondly, the reason for the delay; thirdly, (possibly), the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.” 6. None of the parties herein led submissions in this application, despite the directions given by the Deputy Registrar on 8th September 2026. The applicant states that he lodged a Notice of Appeal on 11th May, 2026, and subsequently applied for certied typed proceedings and judgment, but is yet to be supplied with them by the superior court to enable him le the intended appeal, hence the delay. 7. A few issues arise out of this scenario. Without the record of appeal, the applicant is not in a position to le the appeal sought even if this application is allowed. There is no evidence in the application before me of the request for the record from the superior court, or that a letter bespeaking the proceedings was served upon the respondents as required by rule 84(1). 8. Further, before the record of appeal is availed there will be no certicate of delay in evidence of the delay. It is the certicate of delay that enables the Court to exclude the time taken in preparation of the proceedings, from the computation of the required 60 days as provided by rule 84(2). However, the exclusion is not automatic. It is circumscribed by the proviso to rule 84(2) which provides that: An appellant shall not be entitled to rely on the proviso to sub-rule (1) unless the appellant’s application for such copy was in writing and a copy of the application was served upon the respondent. 9. In other words, the computation of the sixty (60) day window within which he should lodge the record of appeal is suspended during the typing of the proceedings, provided the appellant serves the letter bespeaking the proceedings upon the court and the respondent. (See Mistry Premji Ganji (investments) Ltd v Kenya National Highways Authority [2019] eKLR). 10. Although there is no minimum or maximum period of delay prescribed by law, the applicant bears the burden of satisfactorily explaining that there is delay and that the cause of that delay is reasonable or excusable. (See- Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR). There being no evidence of the request for the proceedings from the superior court, or service thereof upon the respondent, or a certicate of delay, it is not clear whether indeed, there is a delay to begin with and whether it has been well explained. Reasons wherefore, the application is found to be premature and is dismissed with costs to the respondent. It is so ordered. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1965/eng@2026-09-25 2
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L. ACHODE ………………………… . 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/2026/1965/eng@2026-09-25 3
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