Daniel Wesonga v James Waka Oloo & Monica Ondunga Amukoya

3. The Applicant explains this delay on several grounds. First, he states that he was not served with a Notice of Delivery of Judgment following the delivery of the ruling. Second, he was unrepresented during the revocation proceedings before the High Court and was therefore not actively monitoring the court's diary or following up on the matter. Third, he asserts that he only became aware of the judgment in February 2026 when he attempted to cultivate the family land and found his rights being challenged by the Respondents. Upon making inquiries, he obtained certied copies of the judgment and promptly sought legal counsel. 4. The Applicant describes himself as a layperson with limited nancial resources who required time to secure legal representation after discovering the judgment. He further argues that his intended appeal is arguable, raising serious questions regarding the Respondents' locus standi to seek the revocation of his grant and the proper application of Section 76 of the Law of Succession Act. He urges the Court to exercise its discretion in his favour so that the substantive dispute can be resolved on its merits. 5. The Respondents oppose the application through Replying Adavits sworn on 2nd April 2026. Their opposition may be distilled into three main limbs. First, they contend that the Applicant was present in open court on 5th June 2025 when the date for the delivery of the judgment was xed, and that he therefore cannot legitimately claim ignorance of when the judgment was to be delivered. Relying on Mae Properties Limited v Joseph Kibe & Another [2013] eKLR, they submit that knowledge of the judgment delivery date is sucient to trigger the timeline for ling an appeal, regardless of whether a formal Notice of Delivery of Judgment was subsequently served. 6. Second, the Respondents argue that the delay of over four months is inordinate and has not been satisfactorily explained. In their view, the Applicant's claim that he only learned of the judgment in February 2026 is untenable given his presence in court when the delivery date was set. Third, they contend that granting the application would prejudice them by delaying their enjoyment of the "fruits of their judgment," relying on Machira t/a Machira & Co. Advocates v East African Standard (No 2) [2002] KLR 63. 7. The power of this Court to extend time is donated by Rule 4 of the Court of Appeal Rules, 2022, which 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 of a Superior Court, for the doing of any act authorized or required by these Rules, notwithstanding that the time limited may have expired." 8. It is now trite law that this power is unfettered but must be exercised judiciously and not capriciously. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, this Court set out the guiding principles for the exercise of this discretion, namely: the length of the delay; the reason or explanation for the delay; the chances of the intended appeal succeeding; and the degree of prejudice to the respondent if the extension is granted. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR further claried that extension of time is an equitable remedy, not an absolute right, and that the applicant must lay a sucient basis to the satisfaction of the Court, the underlying consideration being whether the justice of the case demands the extension sought. 9. The delay in ling the Notice of Appeal is approximately four (4) months and fteen (15) days. The Respondents have characterized this as inordinate. While this period is admittedly not insignicant, this Court has repeatedly held that the length of delay, taken in isolation, is not determinative. In Kenya Revenue Authority v Export Trading Company Limited [2019] eKLR, this Court observed https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2059/eng@2026-07-17 2

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that the critical question is not the arithmetic of the delay but whether the delay has been satisfactorily explained. I will therefore consider the explanation oered alongside, rather than separate from, the length of the delay. 10. The Applicant's explanation is two-fold: lack of formal notice of delivery of judgment, and his status as an unrepresented layperson who only discovered the judgment when his rights to the family land were challenged in February 2026. The Respondents have countered this by pointing out that the Applicant was present in court on 5th June 2025 when the judgment date was xed, relying on Mae Properties Limited v Joseph Kibe & Another [2013] eKLR for the proposition that such knowledge is sucient to set the appeal clock running. 11. I must, however, distinguish the facts of this case from the Mae Properties scenario. In Mae Properties, the applicant was a corporate entity represented by counsel on record, and the Court found that a party who had knowledge of the judgment date and the benet of legal representation could not feign ignorance of the consequences of failing to act timeously. The present matter is materially dierent. The Applicant was a self-represented litigant in a succession cause, a jurisdiction that frequently involves parties with limited legal literacy navigating complex procedural requirements. While the High Court record may indicate that parties were "aware of the Ruling date," the question is not merely whether the Applicant had intellectual knowledge of a date xed some four months earlier, but whether, as a layperson acting in person, he suciently appreciated that the clock for his right of appeal would begin to run automatically from that date, even in the absence of formal notice. 12. I am further persuaded by the Applicant's conduct upon discovering the judgment. He did not sit on his rights; he promptly obtained certied copies and sought legal counsel, resulting in the ling of this application on 10th March 2026, less than a month after he became aware of the judgment. This prompt action lends credence to his explanation. As this Court held in Mwangi v Kenya Airways Limited [2003] KLR 486, a plausible explanation is the "key that unlocks the Court's discretion." I am not satised that the Respondents have demonstrated, to the required standard, that the Applicant's explanation is a mere afterthought or a contrivance designed to mask indolence. 13. As to whether the intended appeal raises arguable issues, it is well settled that at this stage the Court does not conduct a mini-trial or a microscopic examination of the merits. The threshold is whether the intended appeal raises an arguable case that is, one that is not frivolous or vexatious. In Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, this Court held that an arguable appeal need not be one that must necessarily succeed; it is sucient if it raises at least one bona de issue warranting consideration by the appellate bench. 14. The Applicant has raised arguable issues regarding the revocation of his grant under Section 76 of the Law of Succession Act and the locus standi of the Respondents to petition for revocation. These are substantive questions of law and fact that, on the face of it, merit interrogation by a full bench. I am satised that the intended appeal crosses the threshold of being arguable. 15. On prejudice, the Respondents submit that they would suer prejudice by being denied the fruits of their judgment, citing Machira t/a Machira & Co. Advocates v East African Standard (No 2) [2002] KLR 63. I note, however, that this is a family succession dispute concerning ancestral land. In such matters, the Courts have consistently adopted a position that favours the determination of disputes on their merits rather than on technical procedural infractions. This principle was underscored in Paul Wanjohi Mathenge v Duncan Gichane Mathenge [2018] eKLR, where this Court emphasized that in succession causes, the overriding objective demands that substantive justice prevail over procedural rigidity. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2059/eng@2026-07-17 3

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16. In the circumstances of this case, any prejudice that the Respondents may suer by reason of the delay in prosecuting the appeal is compensable in costs. Conversely, denying the application would irreversibly lock the Applicant out of the appellate process, causing a grave injustice that no award of costs could remedy. The Supreme Court in Kenya Airports Authority v Mitu-Bell Welfare Society & 2 Others [2021] eKLR rearmed the principle that courts should lean towards sustaining proceedings rather than extinguishing them on technical grounds, so long as the substantive justice of the case so demands. 17. Having considered the application, the adavits on record, the submissions of counsel, and the applicable legal principles, I am satised that the interests of justice and the peculiar nature of this succession dispute warrant the exercise of this Court's discretion in favour of the Applicant. Procedural timelines, while important, should not be applied so rigidly as to defeat substantive justice, particularly where the delay has been plausibly explained, and the intended appeal raises arguable issues. 18. Accordingly, I make the following orders: i. The application for extension of time is hereby allowed. ii. The Applicant is granted leave to le and serve the Notice of Appeal within seven (7) days from the date of this Ruling. iii. The Notice of Appeal annexed to the application shall be deemed duly led upon payment of the requisite court fees within the same period of seven (7) days. iv. The costs of this application shall abide by the outcome of the intended appeal. It is so ordered. DATED AND DELIVERED AT KAKAMEGA THIS 17TH DAY OF JULY, 2026. R. NGETICH ................................................. 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/2026/2059/eng@2026-07-17 4

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