Musyoka Sammy Kithisya v Charles Katumo Kithisya & 1 other

2. 5. The learned magistrate erred in law and fact in proceeding to make a determination on the notice of the preliminary objection without considering the nature of the issues raised in the applicant’s notice of motion dated 24/10/2022. 6. The learned magistrate erred in law and fact in failing to appreciate that by dismissing the application dated 24/10/2022 the estate pf the deceased would go into waste since the petitioners had already disposed off part of the estate disregarding the rights of the interested party and also the respondents have no interest in the estate. 7. The learned magistrate erred in law and fact in failing to appreciate the fact that the respondents had disposed off the deceased property before taking the grant of letters of administration of the estate and that the purchaser wasn’t a creditor to the estate and should not have been recognized in the P&A form 5 as a beneficiary. 8. The learned magistrate erred in law and fact in failing to appreciate that the interested party has right to preserve his interests if the estate is at risk of disposal when its purely left in the hands of the respondents/petitioners. 9. The learned magistrate erred in law and fact in failing to pay regard to the fact that this parties are siblings of the deceased and every party is obliged to pay its own costs. 10. The learned magistrate erred in law and fact in failing to appreciate that the court has wider jurisdiction in determining administration and distribution of the deceased estate and should not close an eye where the law is being violated. Th applicant prays that the ruling delivered on 7/3/2023 be set aside. That the notice of preliminary objection be struck out. The respondent filed a Notice of Preliminary Objection based on the following grounds: 1. The appeal herein was filed out of time contrary to Section 79G of the Civil Procedure Act (Cap 21, Laws of Kenya), which provides that an appeal from a subordinate court to High Court must be filed within thirty (30) days from the date of the decree or order appealed against. 2. The appeal was filed on 11th April 2023, whereas the ruling being appealed against was delivered on 7th March 2023, meaning that the statutory 30-day limit expired on 6th April 2023. 3. The appellant did not seek leave of the court of file the appeal out of time, thereby rendering the appeal incompetent, fatally defective and nullity ab initio. 4. This court lacks jurisdiction to entertain an appeal filed out of time without leave of court. 5. The appeal is bad in law, an abuse of the court process, and should be struck out with costs to the respondents. 3. The impugned ruling was on a preliminary objection stating that the application dated 24/10/2022 is res judicata on the ground that the same issues were abused in a ruling of the court dated 6/9/2022. The learned magistrate considered the application and held that the application dated 24/10/2022 is res judicata and offends the Section 7 of the Civil Procedure Act. The respondent opposed the application and filed a preliminary objection on the basis that the appeal was filed out of time and without leave of the court. The appeal was canvassed by way of written submissions 4. It is trite law and a rule of practice that where a preliminary objection it has to be determined first because it may dispose off the suit. see the case of Mukisa Biscuits Limited -vs- Westend Distributors. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19511/eng@2025-12-19 2

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A preliminary objection is a point of law which is based on the facts pleaded and assumption that the facts pleaded are correct. Section 7G of the Civil Procedure Act Cap 21 Laws of Kenya provides that: “ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation. (1)—The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it. Explanation. (2)—For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court. Explanation. (3)—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation. (4)—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation. (5) —Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. Explanation. (6) —Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.” 5. The Section refers to decrees and orders where a time is limited for doing something, a party is bound to comply with the set timelines, failure to which that act may be declared null and void. The appeal may be admitted out of time if the appellant satisfies the court that he had a good and sufficient cause to file for not filing the appeal in time. 6. In this matter the ruling was delivered on 7/3/2023. The appeal was supposed to be filed within thirty days. The time lapses after thirty days. The appellant filed the memorandum of appeal on 11/4/2023. The time lapsed on 7/3/2023. The appellant did not move the court to file appeal out of time. 7. I find that the appeal was filed out to time. The appellant has not complied with the rules for filing appeal. Order 42 rule (2) of the Civil Procedure Rules provides that: “ Where no certified copy of the decree or order appealed against is filed with the memorandum of appeal, the appellant shall file such certified copy as soon as possible and in any event within such time as the court may order, and the court need not consider whether to reject the appeal summarily under section 79B of the Act until such certified copy is filed.” 8. Furthermore Order 42 Rule 13(4) of the Civil Rules provides that: “ Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say— (a) the memorandum of appeal; (b) the pleadings; (c) the notes of the trial magistrate made at the hearing; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19511/eng@2025-12-19 3

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(d) the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing; (e) all affidavits, maps and other documents whatsoever put in evidence before the magistrate; (f) the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal: Provided that— 9. (i) a translation into English shall be provided of any document not in that language; (ii) the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).” The appellant has not complied with the Rules and has not sought leave to file the record of appeal and to file the appeal out of time. The appellant has not complied with the legal requirements for filing a valid appeal. The appeal is not properly before this court. I order that the appeal be struck out with no orders as to costs. DATED, SIGNED AND DELIVERED AT KITUI THIS 19TH DAY OF DECEMBER 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19511/eng@2025-12-19 4

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