Ndegwa v Wangechi & another

Appeal. This was prior to the delivery of the judgment of the Supreme Court in Petition No. E029 of 2024: Eliud Mwendia v. Kevin Wanjohi Muchira, on 31st March 2026, where the Court ruled that appeals from decisions of the High Court in succession, (probate and administration) matters, lie as of right and do not require leave to appeal. 4. The application for leave to le appeal to the Court of Appeal was disposed of on 18th May 2026, when the sixty (60) days’ timeframe within which the Memorandum and Record of appeal were supposed to have been led and served had lapsed way back on, or about 2nd May, 2026. He avers that the time frame prescribed for ling and serving the Memorandum and Record of Appeal continues to lapse and inordinate delay is likely to be inferred on the part of the Applicant. 5. The Applicant deposes that he stands to suer great prejudice compared to the respondents if the orders sought are not granted. That the Respondents stand to suer no prejudice, if the hearing and determination of this application is expedited and the orders sought are granted. He urges that the intended appeal is arguable with high prospects of success as shown in the Memorandum of appeal annexed. That a delay of 60 days is not inordinate and this application has been brought without inordinate delay. Therefore, it is in the interest of justice for the discretion of this Court to be exercised in his favour. 6. When the application came before Court for hearing on 22nd September 2026, none of the parties had led submissions. This is despite the Hon. Deputy Registrar having directed on 8th September 2026, that the application would be disposed of by way of written submission with no appearance by counsel, and later reminding the parties to comply with the directions issued in regard to the service and ling of submissions before the hearing date. Further, the Respondent did not le replying adavit. The Motion is therefore, deemed to be unopposed. 7. The Court’s mandate to exercise the discretion to extend time otherwise limited by the rules, or decision of this Court, or Superior Court is original and unfettered. It is donated by Rule 4 of this Court’s Rules 2022 which provides as follows: “ The Court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.” 8. In the exercise of the discretion under rule 4, the Court takes into account various factors, as demonstrated in Paul Wanjohi Methane v Duncan Gichane Mathenge [2013] eKLR where the Court stated that : “ The discretion under Rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice. I take note that in exercising my discretion I ought to be guided by consideration of the factors stated in previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent and interested parties if the application is granted, and whether the matter raises issues of public importance.” 9. As stated by the Apex Court in Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 others, Supreme Court of Kenya Application No. 16 of 2014, 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 and the party who seeks https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1960/eng@2026-09-25 2

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the extension of time has the burden of laying a basis to the satisfaction of the court. The discretion is to be exercised on a case by case basis. 10. Although there is no minimum or maximum period of delay prescribed by law, the applicant bears the burden of satisfactorily explaining that there is delay and that the cause of that delay is reasonable or excusable. (See- Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR). The applicant’s sole reason for the delay herein is that he initially led an application dated 11th March, 2026 in the Court of appeal seeking leave to appeal to the Court of Appeal. This was prior to the delivery of the judgment of the Supreme Court in Petition No. E029 of 2024: Eliud Mwendia v. Kevin Wanjohi Muchira, delivered on 31st March 2026, where the Court ruled that appeals from decisions of the High Court in succession, (probate and administration) matters, lie as of right and do not require leave to appeal. 11. The impugned ruling was delivered on 19th February 2026, and the Applicant lodged a Notice of Appeal in the Court of Appeal within time on 2nd March, 2026. However, the application for leave to appeal to the Court of Appeal was disposed of on 18th May 2026. The sixty (60) days’ timeline within which the Memorandum and Record of appeal were supposed to be led and served lapsed on, or about 2nd May, 2026. Consequently, I nd that the reason stated above is reasonable and the delay is not inordinate. The cause of that delay is found to be excusable. 12. On the Possibility of the intended appeal succeeding, the Court expressed itself in Machira t/a Machira & Company Advocates V Mwangi & Anor (2002) thus: “The Court will only refuse leave if satised that the applicant has no realistic prospects of succeeding on the appeal. The use of the word "realistic" makes it clear that fanciful prospect or an unrealistic argument is not sucient. When leave is refused, the Court gives short reasons which are primarily intended to inform the applicant why leave is refused. The Court can grant the application even if it is not so satised. There can be many reasons for granting leave even if the Court is not satised that the appeal has no prospects of success. For example, the issue may be one which the Court considers should in the public interest be examined by this Court or, to be more specic, this Court may take the view that the case raises a novel point or an issue where the law requires clarifying. There must, however, almost always be a ground of appeal which merits serious consideration”. 13. The applicant herein, annexed a Memorandum of Appeal dated 4th March 2026, indicating the grounds of the intended appeal to be inter alia: that the learned Judge erred in law by nding that the Administrator was a fraudulent person, when all the beneciaries had agreed that he was the one to administer the estate. Further that the learned Judge misinterpreted section 35(1) and (5) and section 41 of the Law of Succession Act and therefore, arrived at the wrong conclusion. This in my view, are not idle issues and should be given a chance for ventilation on appeal. 14. On the question of the prejudice to be suered, I weighed the right of the Applicant to pursue the intended appeal, which is pegged on the need to do justice to the parties and boost the condence of the public in the justice system, against that of the Respondents to have nality and conclusiveness to litigation, so that they can enjoy the fruits of a judgement that was rendered in their favour. I nd that the Respondents will not suer prejudice since it is in the interest of justice that justice be done to the parties and that there be nality and conclusiveness to the dispute. 15. Consequently, the application dated 24th June 2026, succeeds and I order as follows: i. The Notice of Motion dated 24th June 2026, is hereby allowed. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1960/eng@2026-09-25 3

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ii. The Applicant shall le and serve the Memorandum and Record of Appeal within twenty-one (21) days of this ruling. iii. The Applicant shall bear the cost of this application. It is so ordered. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026. L. ACHODE ………………………… . JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1960/eng@2026-09-25 4

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