REPUBLIC OF KENYA IN THE COURT OF APPEAL AT KAKAMEGA CORAM: RADIDO S. OKIYO JA (IN CHAMBERS) CIVIL APPLICATION NO. E043 OF 2026 (Formerly Kisumu Civil Application No. E153 of 2025) BETWEEN SIMON OCHIENG OTHIAMBO.............................APPLICANT AND JOSHUA AREGO OBUOR...............................RESPONDENT (An application arising from the Ruling and Orders of the High Court of Kenya at Kakamega (Mbungi S.N., J) delivered on 30 April 2025 in Kakamega High Court Succession Cause No. 80 of 1986) RULING 1. On 30 April 2025, the High Court (Mbungi S.N., J) dismissed an application by Simon Ochieng Othiambo (the applicant) dated 21st January 2019, seeking the revocation and/or annulment of the grant issued to Joshua Arego Obuor (the Respondent) over the estate of Gabriel Odhiambo Opondo (deceased). The Court informed the applicant of a right of appeal within 30 days. 2. The applicant did not appeal within the 30 days and on 18th November 2025, he filed the instant 1|PageKakamegaCivilApplicationNo.E043of2026
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application dated 5th November 2025 under section 3A & B of the 2|PageKakamegaCivilApplicationNo.E043of2026
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Appellate Jurisdiction Act and Rules 4, 41 and 42 of the Court of Appeal Rules, 2022, seeking leave to appeal out of time. 3. The main grounds advanced by the applicant in support of the application were that he was acting in person and was not aware of the procedural requirements relating to the filing of a Notice of Appeal; the instructed delay an was not inordinate; he had advocate to appeal due to but inadvertence he did not file the appeal; he had been denied access to his residential home located within the subject property and stood to suffer; the Respondent would not be occasioned any prejudice if leave was granted and could be compensated with costs; the intended appeal raised weighty issues regarding the distribution of the estate of Gabriel Odhiambo Opondo and his entitlement (applicant’s) thereto and the interests of justice would be served by granting the leave. 4. James Juma Arego filed a replying affidavit on 4th June 2026 deponing that he had been granted limited grant of administration over the estate of the Respondent 3|PageKakamegaCivilApplicationNo.E043of2026
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(who was the administrator of the estate of Gabriel Odhiambo 4|PageKakamegaCivilApplicationNo.E043of2026
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Opondo) and therefore the application was incompetent for being brought against a deceased person; the Ruling in contention was delivered in the presence of the applicant’s advocate and the applicant had constructive knowledge of the Ruling and delivery and no concrete reasons had been given for the delay in bringing an appeal; there was no evidence that an advocate had been instructed to appeal, and that the intended appeal had no chances of success. 5. Despite a request through an email dated 29 th May 2026 to the applicant to file and serve submissions, the applicant’s submissions were not on record by the morning of 15th June 2026, when the application came up for hearing. 6. The Respondent filed his submissions on 4th June 2026. 7. Apart from reiterating in the submissions the assertions in the replying affidavit, the Respondent urged that since the intended appeal was in respect to the ownership of land, South Wanga/Bungasi/103, then the proper forum was the Environment and Land Court and not a Succession Court. 5|PageKakamegaCivilApplicationNo.E043of2026
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8. Rule 4 of the Court of Appeal Rules, 2022 grants the Court the power to extend the time to file an appeal. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi (1999) 2 EA 231 (CAK), this Court held that the power is discretionary and unfettered, and the factors the Court should consider before exercising the discretion are the length of delay, the reasons for the delay and possibly, the chances of an intended appeal succeeding. 9. The Ruling that the applicant seeks to challenge was delivered on 30th April 2025, and he moved the Court on 18th November 2025, some 6 or so months later. The explanation given by the applicant is that he instructed an advocate to appeal, but he did not. No particulars of the advocate have been disclosed. It is not indicated exactly when the advocate was instructed to appeal. 10. The applicant was aware or ought to have been aware of the delivery of the Ruling. The High Court granted leave of 30 days to lodge an appeal. It does not, therefore, matter that the applicant is a layperson. The applicant did not take advantage of the window 6|PageKakamegaCivilApplicationNo.E043of2026
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granted by the High 7|PageKakamegaCivilApplicationNo.E043of2026
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Court (appeals from the Succession Court required leave according to the obtaining jurisprudence then). 11. The Respondent, whom the applicant intends to appeal against, died in 1990 according to a copy of the death certificate placed before the Court. If it is true that the applicant’s residence is within the subject property, he must have been aware that he was suing a deceased person, and intends to continue in that endeavour against a deceased person. The legal journey the applicant wants to embark on cannot be a competent one. It is doubtful whether it has possibilities of success. 12. Considering the foregoing, the Court declines to exercise its discretion in favour of the applicant. The Motion dated 5th November 2025 is found without merit and is dismissed with costs to the Respondent. Delivered and dated at Kakamega on this 19th day of June 2026. RADIDO S. OKIYO Signed DEPUTY REGISTRAR I certify that this is a true copy of the original 8|PageKakamegaCivilApplicationNo.E043of2026
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… … … … … … … … … … … … … J U D G E O F A P P E A L 9|PageKakamegaCivilApplicationNo.E043of2026
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