Teresiah Munjiru Gitau & 4 others v Peter Njoroge Mwangi

3. In the second application the Proposed Interested party seeks for the following orders.: a. Spent. b. That the court be pleased to enjoin the Applicant as an Interested Party to the Proposed Appellant’s application dated 14th May, 2025. c. That the Honorable Court be pleased to grant leave to the Applicant/Interested Party to respond to the Appellants application dated 14th may, 2025 and to file submissions and other necessary documents subject to joinder. d. That costs be provided for. 4. Faced with the two applications, I find that in the first application, the proposed appellants are seeking leave to appeal out of time and the gist of the appeal is that the rightful beneficiaries were ousted from the list and the schedule on mode of distribution and intended parties, and I want to believe the Propsed Interested party in the application for joinder, included fraudently. 5. It is trite that whenever a court is faced with an application for leave to enjoin an interested party, and any other application, it opts to determine this application first, just to allow the Intended Interested party, if he/she/it has demonstrated its interest in the matter, to take part in the proceedings, for substantive relief. However, in the instant case, it is clear that the intended Interested Party was not part of the proceedings before the trial court from which the intended appeal emanated. He has been cited therein as an intermediary for allegedly having purchased land from the Estate before confirmation of grant. What this translates to is that the application for joinder cannot be heard in priority as the Intended Interested party was not a party in the case that was before the trial court. An application for leave to appeal involved parties on record in the matter before the trial court. It is only a procedural move on whether the court should allow late filing of an appeal. Where a person such as the Intended Interested party who is claiming an interest as a bonafide purchaser, he/she has no legal interest in whether an appeal is filed late. 6. In view of this, I wish to proceed to determine the leave application first that is between the proposed Appellants and proposed Respondent/Administrator. 7. The Notice of Motion Application dated 14th May,2025, is premised on the grounds that although the Appellants requested for the copies of typed proceedings and a copy of ruling delivered on 20th February, 2025, they did not receive the same on time to enable them file the appeal within the period provided for in law. They have also attributed the delay to the ongoing mediation proceedings within the family which have failed following serious disagreements amongst the beneficiaries. 8. On the mode of distribution of the deceased’s estate, the omission of rightful beneficiaries and the inclusion of intended person as beneficiaries as a ground of appeal, the proposed appellants are apprehensive that if the application is not granted, the appeal may be rendered nugatory and yet it raises arguable issue with a high chance of success and the proposed Respondent stands to suffer no prejudice. 9. It is worth noting that the proposed Respondent did not file any response to the application. Be that as it may, the court is still required to look at and consider the merits of the application. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9391/eng@2026-02-13 2

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10. It will be appreciated that the law on time within which to file an appeal and extension of time to file an appeal is provided for under Section 79G of the Civil Procedure Act as follows: 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.’’ 11. 12. In the case of Nicholas Arap Korir Salat vs The Independent Electoral and Boundaries Commission (2014) eklR, the Supreme Court landmark factor test for leave to appeal out of time or extension of time to appeal at paragraph 7 of its Ruling as follows: 1. It is clear that the discretion to extend time under Rule 53 of the Supreme Court Rules is unfretted. However, it should be exercised judiciously an upon defined principles. The underlying principles that a court should consider in exercise of such discretion include: 2. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court. 3. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court. 4. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis. 5. Whether there is a reasonable reason for delay. The delay should be explained to satisfaction of the court. 6. Whether there will be an party suffered by the Respondent by the Respondent if the extension is granted. 7. Whether the application has been brought without undue delay and whether in certain case the election petition, a further interest should be a consideration for extending time. The principles were then collapsed it to a four (4) factor test(key principles) which all courts below now apply. The courts are required to consider: i. The lengthy of delay and determine whether the same is inordinate delay and without explanation as this would be inexcusable. ii. The reason for delay which ought to be reasonable, plausible and satisfactory such as mistake of counsel(but should be bonafide) unless or lack of knowledge of impugned decision, if there is proof. iii. The arguability of the intended appeal whereby an applicant must demonstrate a prima facie case with a probability of success. And while the court is not required to go into the full merits of the appeal, it has to establish that the intended appeal is not frivolous. iv. The prejudice to Respondent must be weighed, that is, the prejudice the Respondent is likely to suffer if extension is granted vis-a-vis the prejudice to the appellant is likely to suffer if the same is denied. If the delay is such that it can be compensated with costs, then it ought not be granted. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9391/eng@2026-02-13 3

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13. In the instant case, the impugned ruling was delivered on 20th February,2025 hence the period within which to appeal lapsed on 20th March,2025. This application is dated 14th May,2025, hence a delay of over one and half months is noted.It is worth noting that even a one day delay requires explanation. In this case, the propsed appellants explained that the proceeding were availed to them late despite having requested for the same them soon as the ruling was delivered. However, they have not availed evidence of this explanation. 14. The applicants have also explained the delay on an attempt by the family to mediate the matter which attempted failed due to disagreement amongst the family members. Again I find that the Appellants have not attached any evidence of proceedings to confirm the attempted mediation. However, since the respondent did not file any response, the claim remains unrebutted resulted and I find that such effort is a sign of good faith and is encouraged under Article 159(2) (e) of the Constitution which obligated court to furnish alternative dispute resolution amongst parties. Therefore, any time spent by parties in genuine settlement negotiations is worth the court’s consideration. For this reason, I find the explanation for the delay satisfactory to warrant exercise of this court discretion. 15. On the arguability of the appeal, I have read through the grounds in support of the appeal set out in the Memorandum of Appeal alongside the ruling delivered on 20th February,2025 and find that the issues raised are in regard to a grant having been obtained by concealment of some of the beneficiaries and an impugned sale of land Parcel No. Ting'ang'a/Cianda/Block 1/195 before the confirmation of the grant which brings about the issue of intermeddling by the proposed 1st Respondent. Being a succession matter,these are issues of public interest which require to be conclusively ventilated and adjudicated upon in the proper administration of estates as they point towards fraudent acts. Therefore, I find that the proposed Appellants have demonstrated a prima facie case and an arguable appeal, hence deserved the prayers sought. 16. In the case of Edith Gichunge Kiome vs Stephen Njagi thro the 2014eKLR the court held that: Nevetheless, it ought to be guided by consideration of factors stated in many previous decisions of this court including but not limited to the period of delay, the degree of prejudice to Respondent, if the application is granted and whether the matter raises issues of public importance amongst others’’ 17. Now, I move to the second application where the Intended Interested party has sought for leave to be enjoined to the proposed Appellant’s application dated 14th May,2025 so that he can respond to the said application and file submissions. 18. According to the Intended interested party, he purchased property known as Ting'ang'a/Cianda/ Block 1/195 and hence has purchaser interested in the estate, having been in possession of the same for more than five(5) years, hence stand to suffer substantive loss if the appeal proceeds without him and adverse orders are made in law. 19. It is the proposed Appellant’s response that the Intended Interested party’s interest is irrelevant to the question of extension of time within which to file an appeal, hence stands to suffer no prejudice if the orders sought are granted without his participation in the proceedings. According to the proposed appellants, the Intended Interested Party purchased the alleged property before confirmation of grant which amounts to intermeddling with the estate and maintain that his application for joinder will be prejudicial to that application as it will delay its determination. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9391/eng@2026-02-13 4

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20. To determine this application, the first point of call on the issue of joinder of parties to a suit is underpinned under Order 1 Rule 10 (2) of the Civil Procedure Rules which states as follows: (2) 21. The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.’’ Under Rule of the Constitution of Kenya (Protection of Right and Fundamental Freedom) Practice and Procedure Rules, 2013 an interested Party in defined as follows: Interested Party means a person or entity that has an identifiable stake on legal interest or duty in the proceedings before the court but not a pray to the proceedings or ruling, not be directly involved in the litigation.’’ 22. And in the case of Communications Connections of Kenya and 4 others vrs Royal Media Service Limited and 7 others (Petition No. 15 of 2014) eklR the Supreme Court defined an interested party as follows: An Interested party is one who has a stake in the proceedings, though he or she was not party to the cause as initiated. He or she is one who will be affected by the decision of the court when it is made either way. Such a person feels that his or her interest will not be will articulated unless he himself or she herself appear in the proceeding and chargeficious …..his or her cause. Similarly, in the case of MENE vrs Republic (2004) EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that: i. Joinder of a person because his presence will result in the complete settlement of all the question involved in the proceedings. ii. Joinder to provide protection for the right of a party who would otherwise be adversely affected in law. iii. Joinder to proven a likely course of proliferated litigation. We ask ourselves the following questions; 23. i. What is the intended party’s state and relevance in the proceedings and ii. will the intended Interested Party suffer any prejudice if denied joinder? The intended appeal emanates from a ruling where the proposed Appellant’s had sought to have the Grant issued to the Intended Interested Party. Nevertheless, the Intended Interested Party alleges and has been cited in the Proposed Appellant’s pleading as having bought a parcel of land No. Ting'ang'a/ Cianda/Block 1/195. He claims that he has been in possession thereof for over five years while the proposed Appellants claim he bought the same before Confirmation of Grant hence raising the issue of intermeddling against the proposed respondent. And one ground for seeking this order that the list of beneficiaries and schedule on mode of distribution had included persons who are not part of the beneficiaries, I find that the intended Interested party has admitted to be part of these person on account of having purchased land parcel No. Ting'ang'a/Cianda/Block 1/195 where he has lived for more than five(5) years. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9391/eng@2026-02-13 5

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24. As earlier stated, the intended Interested party was not a party in the proceedings that have led to the need for the intended appeal. Therefore, he has no locus in the application for extension of time to file an appeal as he has not demonstrated any propriety or legal interest, as a third party. To grant him the prayers he seeks at this stage would indeed, and I agree with the proposed appellants that this would cause delay in hearing of the application as there is a likelihood of raising merit based arguments which would be best canvassed on appeal and yet he has not shown the prejudice he would suffer if he is denied the order at this stage. 25. Based on these arguments by the parties, I find it prudent to have him joined in this appeal where he can urge the proprietary right he claims to have in the estate whereby he stands to suffer no prejudice as he shall be accorded the right to file a response and submissions on the same as envisaged under Article 50(1) of the Constitution which guarantees every person a right to fair hearing as follows: Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.’’ 26. For the reasons stated in consideration of each application, I proceed to allow the two applications as follows: a. b. 27. The Notice of Motion application dated 14th May,2025 be and is hereby allowed in following terms: i. The proposed Appellants are granted leave to appeal against the Ruling of Hon. Mrs J.D Karani, Senior Resident Magistrate delivered on 20th Febraury,2025 at Kiambu out of time. ii. Subject to amendment to include the intended Interested party, the Notice of Appeal and Memorandum of Appeal annexed to the said application are hereby decreed as duly filed and shall be served upon the proposed Respondent and Intended Interested party within 7 days from the date of this ruling. The Notice of Motion application dated 15th September,2025 is hereby declined in the terms presented therein and instead the following orders issue: i. The Intended Interested Party be and is hereby enjoined in the intended appeal ii. The Intended Interested Party shall be at liberty to file and serve a response to the appeal within fourteen (14) days) of being served with the amended Memorandum of Appeal. iii. Costs shall abide the cause of the appeal. It is so ordered. RULING DATED, SIGNED AND DELIVERED THIS 13TH DAY OF FEBRUARY, 2026. HON. D. O. CHEPKWONY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9391/eng@2026-02-13 6

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