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Court of AppealAllowedNot stated in the judgment

Aboge v Aboge & 2 others (Civil Application E113 of 2025) [2025] KECA 2062 (KLR)

Court of Appeal of Kenya
1 December 2025
732 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kisumu (L. Kimaru, JA) delivered on 1st December 2025 on an unopposed application under Rule 4 of the Court of Appeal Rules for leave to appeal out of time against the judgment of the High Court at Migori (Wendoh R. J) of 20th October 2023 in a succession dispute. Because the appeal lay from the High Court to the Court of Appeal, the applicant first needed leave under Rule 50(1) of the Law of Succession Act; the High Court (Ong'injo, J) declined that leave, and on a later application this Court (P. Nyamweya, JA) granted leave to apply for leave out of time, directing that the substantive application be filed within fourteen days. The applicant filed the present application on 22nd July 2025, attributing the delay to the time taken to pursue the leave process, which spanned nearly two years. The respondents filed no replying affidavit or submissions despite service. Applying the principles in Andrew Kiplagat Chemasingo v. Paul Kipkorir Kibet - explanation for delay, length of delay, arguability, and prejudice - the Court accepted the explanation, found the proposed grounds of appeal disclosed a genuine desire to appeal, and held the respondents would not be unduly prejudiced. The application was allowed: leave to appeal out of time was granted, the notice of appeal to be filed and served within fourteen days, the record of appeal within forty-five days, with no orders as to costs, the dispute being family-related.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has shown sufficient cause for the delay in lodging the appeal out of time
  2. 2.Whether the proposed appeal is arguable and likely to succeed
  3. 3.Whether the respondents will suffer prejudice if the extension of time is granted

Key legal issues

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01

Whether sufficient cause was shown for the delay in filing the appeal out of time

Holding

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.

Reasoning

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.

p. 2
02

Whether the proposed appeal is arguable and whether the respondents would be prejudiced

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application is allowed and the applicant is granted leave to appeal out of time
  2. 2.The notice of appeal shall be filed and served within fourteen (14) days
  3. 3.The record of appeal shall be filed and served within forty-five (45) days
  4. 4.There shall be no orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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.
p. 2Principles for extension of time to appeal
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.
p. 2Final orders and disposition

Issues in the judgment

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material

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.