Teresia Mumbi Kinyanjui & 2 others v Wanja Nyaga

2. The Application is based on the grounds set out on its face and the Supporting Affidavit of all the three Applicants sworn on even date wherein they have explained the reason why they failed to lodge an Appeal within the prescribed timelines. 3. The application is opposed through the Replying Affidavit of W N sworn on 17th December, 2024. 4. From the onset, the court directed that the application be canvassed by way of written submissions and only the Applicants filed theirs dated 30th April, 2025 which will have been read for consideration by the court in its determination of the application. Analysis and Determination 5. Having read the Notice of Motion application, the Replying Affidavit and the Applicant’s submissions, the court finds that the main issues for determination are:a. Whether the court should grant the Applicant leave to appeal out of time, the ruling delivered on 8th May, 2023; and, b. Whether stay of execution orders should issue herein. 6. On the first issue on whether the Applicant should be granted leave to appeal out of time, it is trite that this is a discretionary remedy sought by a party intending to file an appeal out of the stipulated time frame. 7. In this case, the Applicants have stated that the impugned ruling was delivered on 8th May, 2023 and they immediately instructed their advocates, Ms Gikenye Mugo & Rienye Advocates to lodge an appeal on the same. That the Advocate therein one Samuel Kimumu advised them that the appeal had already been filed and was awaiting court’s directions. The Applicants go on to state that they were later informed that the advocate was unwell and they then engaged their current advocates and were shocked to learn that an appeal had not been filed. They then had to instruct counsel to file an appeal and since they had court documents, they wrote letters to Githunguri Court seeking to obtain proceedings hence the delay. 8. In response, the Respondent confirmed that indeed a Ruling was delivered by the trial court on 8th May, 2023 but opposed the Applicants’ application on the ground that they never filed an application for review or Summons of Revocation as required. According to the Respondent, the matter proceeded for hearing with the full knowledge of the Applicants and he (Respondent) filed Summons for Confirmation of Grant dated 31st January, 2024, which Summons were fixed for Directions on 25th March, 2024. That the Applicants sought time to file a response and the court issued a date of 29th April, 2024 then on 3rd June, 2024 and hearing fixed for 5th August, 2024 and directed a Hearing notice to be issued. That on that 5th August, 2024 despite being served with the hearing Notice, the Applicants’ advocates did not attend court and the court proceeded to allow the Summons for Confirmation of Grant and the Certificate of Confirmation of Grant was issued on even date. It is the Respondent’s contention that there has been gross delay in filing this application as it is almost two (2) years since the time of ruling . The Respondent also contends that the Applicants were given multiple chances to file responses to the Summons but they did not do so. The Respondent has therefore urged the court to dismiss the application with cots and proceed with the orders on distribution of the estate as per the Certificate of Confirmation of Grant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19284/eng@2025-07-25 2

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9. It is trite that an appeal to this court ought to be filed within thirty (30) days of a decision from the subordinate court and such time may be enlarged as provided for under Section 79G of the Civil Procedure Act which states that:“ 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 factors which a court ought to consider various factors in granting leave to appeal out of time have been addressed by the courts in cases such as the case of Edith Gichungu Koine –vs- Stephen Njagi Thoithi [2014]eKLR and Thuita Mwangi –vs- Kenya Airways Ltd [2003] eKLR. Briefly, the key factors for consideration by the court are the length of delay which ought to be reasonable, the reasons for the delay which should be valid and plausible, the likely prejudice to the other party, conduct of the parties in the entire process and chances of the appeal succeeding. 11. This Court has considered the sentiments and arguments by either party and finds that indeed the impugned ruling was delivered on 8th May, 2023. The instant application is dated 21st November, 2024, clearly showing that the same was filed more than one (1) year six (6) months later, which is evidence of delay. The Applicants have blamed the delay in filing the appeal on their previous counsel who made them believe that he had filed the appeal as instructed, only for them to find out that he was unwell and had not filed the appeal. They then instructed another advocate and had to embark on seeking documents from Githunguri Law Courts to enable them have the appeal filed. 12. In response, although the Respondent has pointed out instances which point out to the Applicants’ indolence, he has not denied or rebutted the non-compliance and or attendance on court was largely caused by the Applicants’ previous counsel. The Respondent has even sated that the hearing Notice were served upon the Applicants’ counsel. Clearly, it can be seen that the delay in filing an appeal cannot be largely blamed on the Applicants. 13. The court has also taken note of the nature of dispute which arises out of a Succession Cause and finds that there is need for the parties to be let to ventilate their respective cases to their satisfaction so as to avoid prejudice for either party. Therefore, in the interest of justice, this Court finds it prudent to allow the Applicants prayer for leave to appeal out of time. 14. Having granted the Applicants leave to appeal out of time, the next issue for this court’s determination is whether an order for stay of execution should be granted. This is equally a prayer that calls upon the court to exercise its discretion based on the laid down principles and requirements for granting a stay of execution. These principles are found in Order 42 Rule 6(2) of the Civil Procedure Rules and have been reiterated by courts in this country in their decisions in similar applications on a daily basis. What courts look for in such applications is a demonstration of the Applicant that they stand to suffer substantial loss if the stay is not granted, the Applicant is made without unreasonable delay, the Applicant to provide security for the due performance of the decree, arguability of the appeal and avoiding to render the appeal nugatory. 15. And in doing so, the court ought to invoke its discretion and am at ensuring that the appeal process is not put in jeopardy, the opposing party denied the fulfilment of his/its/her judgment and Appellant’s right to pursue their appeal guaranteed and protected. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19284/eng@2025-07-25 3

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16. Having considered the nature of this case and circumstances thereof, this Court finds that the justice of the case calls for stay of execution of the Certificate of Confirmation of Grant issued on 13th August, 2024. 17. In the resultant, this Court proceeds to allow the Notice of Motion application dated 21st November, 2024 in the following terms:a. The period within which the appeal should have been filed is hereby extended. b. The Applicant be and is hereby granted leave to appeal out of time the ruling delivered on 8th May, 2023 in Githunguri Succession Cause No.15 of 2020, consolidate with Githunguri Succession Cause No.28 of 2020, In the Matter of the Estate of P K K. c. The draft Memorandum of Appeal dated 21st November, 2024 attached to the Supporting Affidavit sworn by the Applicants be and is hereby deemed as duly filed and served. d. The Deputy Registrar to direct for an appeal file to be opened for directions to issue on hearing of the appeal. e. Mention on 1st September, 2025 before the Deputy Registrar for parties to confirm compliance of direction (d) and further directions to issue. f. Being a family matter, there are no order as to costs. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 25TH DAY OF JULY 2025.(UPLOADED VIA ELECTRONIC MAIL) D. O. CHEPKWONY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19284/eng@2025-07-25 4

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