Aboge v Aboge & 2 others (Civil Application E113 of 2025) [2025] KECA 2062 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a two-year-late succession appeal because the delay was spent obtaining required leave, showing courts excuse delays caused by lawful process.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has shown sufficient cause for the delay in lodging the appeal out of time
- 2.Whether the proposed appeal is arguable and likely to succeed
- 3.Whether the respondents will suffer prejudice if the extension of time is granted
Key legal issues
#Whether sufficient cause was shown for the delay in filing the appeal out of time
Yes. The delay was attributable to the time taken to obtain the leave required by the Law of Succession Act, and the explanation was accepted.
The Court rehearsed the established extension-of-time principles: explanation for delay, length of delay, arguability of the appeal, and prejudice. It found the applicant was prevented from filing in time because she first had to obtain leave, a process that took nearly two years. The unopposed application, the proposed grounds of appeal, and the absence of prejudice supported the grant of leave and an opportunity to ventilate the appeal.
Whether the proposed appeal is arguable and whether the respondents would be prejudiced
The applicant persuaded the Court of her desire to appeal in light of the proposed grounds of appeal, and the respondents were not shown to be prejudiced.
Applying the Chemasingo principles, the Court noted the applicant's proposed grounds of appeal set out in her supporting affidavit and concluded she should be given a chance to ventilate her appeal. The application was unopposed: no replying affidavit or submissions were filed despite service, so no prejudice was demonstrated.
Legal principles established
#- In an application for extension of time to appeal, the applicant must explain the reasons for the delay; the length of the delay, the arguability of the appeal, and absence of prejudice to the respondent are all material considerations.
- Time spent lawfully pursuing the statutory leave required before appealing (here, leave under the Law of Succession Act) constitutes sufficient cause excusing delay in filing the appeal.
Court orders
#- 1.The application is allowed and the applicant is granted leave to appeal out of time
- 2.The notice of appeal shall be filed and served within fourteen (14) days
- 3.The record of appeal shall be filed and served within forty-five (45) days
- 4.There shall be no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Migori
- Not stated in the judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (application for extension of time / leave to appeal out of time); leave regime under Rule 50(1) of the Law of Succession Act
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The applicant appreciates the principles that guide this Court in determining application such as the present one; she must explain the reasons for delay. The length of delay is material just as is whether they have an appeal that will likely to succeed and whether the respondents will be prejudiced.
In the premises therefore, the application has merit and is hereby allowed. The applicant is granted leave to appeal out of time. The notice of appeal shall be filed and served within fourteen (14) days. The record of appeal shall be filed and served within forty-five (45) days of today's date. There shall be no orders as to costs.
Issues in the judgment
#Internal chronology inconsistency: the High Court ruling declining leave is dated 31st October, 2025, yet this Court's ruling granting leave is dated 11th July, 2025 - earlier in time - and the present application was filed on 22nd July 2025. The stated sequence of dates is internally contradictory.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aboge v Aboge & 2 others (Civil Application E113 of 2025) [2025] KECA 2062 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2062/eng@2025-12-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.