West Kenya Sugar Company Ltd v Haron Sikuta Sikuku, Naomi Nafula Sikuku & Dorah Nakhabi Sikuku

Memorandum of Appeal and Record of Appeal against the Ruling of the superior court (Ougo J) delivered on 27th October 2025. 2|9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 0 31 o f 2 0 2 6

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2. The primary grounds in support of the application were that on 27th October 2025, the superior court found that the applicant had intermeddled with the estate of Wilberforce Sikuku Simiyu (deceased) by making payments due to the estate to a third party on the strength of a letter from family members of the deceased; advocate who had the applicant’s brief went on maternity leave without handing over and thus a Notice of Appeal could not be filed within the prescribed timeline; the Respondents filed a contempt application dated 25th February 2026 against the applicant; the applicant only became aware of the judgment upon the service of the contempt application; the failure to file a Notice of Appeal was an excusable mistake on the part of the advocate and did not amount to inordinate delay; the intended appeal raised arguable points and had reasonable chances of success and that the Respondents would not be prejudiced if the application was allowed. 3. The Respondents' advocate filed a replying affidavit sworn on 13th March 2026 in opposition to the application, 3|9 Page deponing that the application was K a k a m e g a C i v i l A p p l i c a t i o n N o . E 0 31 o f 2 0 2 6

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incurably 4|9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 0 31 o f 2 0 2 6

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defective, incompetent and misconceived; was an afterthought and had been made after inordinate delay; the application for contempt had been withdrawn; the applicant had not demonstrated an arguable appeal, and that leave had not been granted to appeal. 4. Despite directions conveyed through an email sent on 29th May 2026, the applicant only filed a supplementary affidavit and submissions on 12 th June 2026. The applicant did not secure the leave of the Court as contemplated by Rule 45(2) of the Court of Appeal Rules, 2022, to lodge the supplementary affidavit. 5. In the supplementary affidavit, it was reiterated that the advocate with instructions went on maternity leave during the material time without proper handover; the delay was on the part of the advocate; despite the contempt application having been withdrawn, the applicant had moved to stay the proceedings before the superior court on 6 th May 2026; the intended appeal raised arguable points including whether the estate benefited from payments 5|9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 0 31 o f 2 0 2 6

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made to meet the burial expenses. 6|9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 0 31 o f 2 0 2 6

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6. In its submissions, the applicant cited Vishva Stone Suppliers Company Limited v RSR Stone (2006) Ltd (2020) eKLR; Geoffrey Oguna & Ar v. Mohamed Yusuf Osman & 2 Ors (2022) eKLR; Elijah Muriithi & Ar v Peter Christopher Kahoro Mbogo (2020) eKLR; CFC Stanbic Limited v John Maina Githaiga & Ar (2013) eKLR, among other authorities, to urge that it would be unjust to visit an advocate’s non-compliance with the rules of procedure on a client. 7. On the question of prejudice, the applicant asserted that no prejudice would be occasioned to the Respondents because the funds in contention were received and utilised towards the deceased's funeral expenses. 8. Lastly, on the argument that the superior court did not grant leave to appeal the Ruling, the applicant called to its aid the decision of the Supreme Court in Wandi v Muchira (Suing as the Administrator Ad Litem of Jane Muthoni Muchira) (2026) KESC 29 (KLR) that leave was not a prerequisite in an appeal from an exercise of the High Court’s original jurisdiction in a succession dispute. 7|9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 0 31 o f 2 0 2 6

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9. The Respondents filed their submissions on 15th June 2026, wherein they contended that the extension of time is discretionary, but the applicant had failed to demonstrate why the discretion should be exercised in its favour. According to the Respondents, the length of delay showed indolence and lack of vigilance on the part of the applicant, considering that the applicant's advocate firm had more than one advocate. 10. On the chances of the appeal succeeding, the Respondents submitted that since the applicant had paid monies due to the estate of Wilberforce Sikuku Simiyu to a third party in violation of section 45 of the Law of Succession Act, the intended appeal was frivolous and not arguable. 11. The Court has considered the application, affidavits and submissions. 12. Authorities abound on the factors a Court considering an application such as the instant one should consider. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi (1999) 2 EA 231, the relevant factors were stated to be the length of the delay, the reason for the delay, the chances of the 8|9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 0 31 o f 2 0 2 6

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intended appeal prejudice likely succeeding and to occasioned be the degree of to the Respondent(s). 13. Rule 4 of the Court of Appeal Rules gives this Court the jurisdiction to extend time. The Rule provides: The Court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or a superior court, for the doing of any act authorised or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended. 14. The Supreme Court summarised the relevant principles in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Ors (2014) eKLR, thus: extension of time is not right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court; a party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court; whether the court 9|9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 0 31 o f 2 0 2 6

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should exercise the discretion to extend time, is a consideration to be made on a case-to- case basis; whether there is a 10 | 9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 0 31 o f 2 0 2 6

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reasonable reason for the delay; the delay should be explained to the satisfaction of the Court; whether there will be any prejudice suffered by the respondents if the extension is granted; whether the application has been brought without undue delay; and whether, in certain cases, like election petitions, public interest should be a consideration for extending time. 15. The discretion of the Court to grant an extension of time under Rule 4 of the Court of Appeal Rules is unfettered. 16. It is not in dispute that the applicant made payments in respect to the estate of Wilberforce Sikuku Simiyu (deceased) to a party who was not a legal representative and before the making of a grant to the estate. The superior court found the payment amounted to intermeddling with the estate, contrary to section 45 of the Law of Succession Act. Whether the payment constituted intermeddling, in this Court’s view, would be an arguable point. 17. Nevertheless, the Ruling sought to be appealed 11 | 9 K a k a m e g a C i v i l A p p l i c a t i o n N o . E 0 31 o f 2 0 2 6 Page

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against was delivered on 27th October 2025. The applicant had 14 days within which to file a Notice of Appeal with the 12 | 9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 0 31 o f 2 0 2 6

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superior court. The Notice was not filed, and the applicant moved the Court to extend time on or around 17th April 2026. 18. The applicant contended that it was not aware of the delivery of the Ruling until the Respondents served a contempt application dated 25th February 2026. From the time the contempt application was served to the time the instant application was filed is about 2 months. The applicant has not explained why it took 2 months to move the Court after it became aware of the impugned Ruling. 19. In the Court’s view, this disclosure was necessary to enable the Court to address its mind to the question of inordinate delay before it could exercise its discretion in favour of the applicant. 20. The Court also finds it instructive that the applicant’s internal legal counsel swore the supporting and supplementary affidavits, and not an advocate from the firm on record. There was no affidavit from the advocate who had the brief, and no explanation has been offered for the failure to do so. 13 | 9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 0 31 o f 2 0 2 6

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21. The Court finds the application dated 17 th April 2026 without merit, and it is dismissed with costs to the Respondents Dated and delivered at Kakamega on this 19th day of June 2026. RADIDO S. OKIYO ………………………….……… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR 14 | 9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 0 31 o f 2 0 2 6

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