James W. Kazura v Jacob Otieno Odada (sued As The Administrator of The Estate of The Late Peter Odada Sumba)

5. That the Court upheld a preliminary objection and dismissed the suit for being res-judicata, since the issue of ownership had been determined in Succession Cause No. 137 of 2019. That the trial court had indicated to the applicant’s advocate on 16/1/2025, that it had already delivered the ruling and uploaded it on the CTS. That it was therefore untrue that they discovered the delivery of the ruling on 12/3/2025 as contended. 6. That in any event, even after the alleged discovery of the ruling on 12/3/2025, the applicant took another month to lodge this application on 11/4/2025. 7. The parties filed their submissions dated 20/5/2025 and 17/6/2025 respectively which I have carefully considered. I need not reiterate them here. 8. This is an application for leave to file an appeal out of time and for the Memorandum of Appeal dated 12/3/2025 to be deemed duly filed and served. 9. Section 79G of the Civil Procedure Act provides: “ Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.” 10. The exercise of leave under the above provision is in the discretion of the Court. But as in all other discretion, the same must be exercised judiciously and not capriciously. The known principles under which such discretion is to be exercised are; the length of the delay, the reason for the delay, the likelihood of the appeal succeeding and the prejudice, if any, which the opposite party is likely to suffer. See Stanley Kaiyongi Mwenda v Cyprian Kubai (2001) eKLR. 11. On the length of the delay, the ruling was delivered on 15/1/2025, the Memorandum was filed on 12/3/2025 the same day the advocate for the applicant discovered that it had been delivered. That was timeous. No Court should deliver any decision without Notice to the parties. That is what Order 21 of the Civil Procedure Rules commands. To the extent that there was no notice issued to the parties for delivery of the ruling, that was an error on the part of the Court and the applicant cannot be punished for that. The delay between 15/1/2025 and 12/3/2025 was fully explained. 12. However, there seems to be no explanation for the delay from 12/3/2025 and 11/4/2025 when the present Motion was lodged. The delay was exactly 30 days which is the exact period required to lodge an appeal from the Subordinate Court to this Court. I will excuse that delay. 13. As to the reason for the delay, I have already found that the Court erred in delivering the ruling and publishing the same in the CTS without notice to the parties. The reason for the delay is therefore plausible. 14. The 3rd ground is the chances of the appeal succeeding. I have seen the ruling and the Memorandum of Appeal. It is clear that there is a firm finding, and not disputed, that the family court has already pronounced itself on the ownership of the subject matter of that applicant’s suit in the lower court. 15. It is trite that, matters of succession are to be dealt with by the family Court and no other Court. Even this Court, when exercising its commercial or civil jurisdiction, it cannot extend to matters succession. It can only deal with such an eventuality when it is exercising its jurisdiction as a Family Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15406/eng@2025-10-31 2

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16. Rather than chase a matter which has no chance of succeeding, as the matter has been dealt with by another Court of competent jurisdiction, the route taken by the applicant is misguided. She should go back to the Family Court to either set aside the order she is aggrieved with as per the law provided, if she did not properly participate in those proceedings, or appeal to the High Court and invoke its jurisdiction as a Family Court. 17. Being of the foregoing view, I think allowing the matter to go forward would be an exercise in futility. 18. Accordingly, I find the Motion to be without basis and I dismiss the same. In view of the circumstances of this case, I will make no order as to costs. It is so ordered. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF OCTOBER, 2025. A. MABEYA, FCI Arb. JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15406/eng@2025-10-31 3

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