Muyumbu v Wawire & another

3. The appellant followed with a memorandum of appeal dated 21st August 2021, wherein he contended that: i. The Learned Trial Judge erred in law by raising and submitting on issues on behalf of the respondents in the ruling. ii. The learned Trial Judge erred in law and fact by deciding on issues not raised by the appellant in the application. iii. The Learned Trial Judge erred in law and fact by failing to appreciate the arguability of the present matter at the appellate level and dismissing the application entirely on technicalities. iv. The Learned Trial Judge erred in law by making it a legal requirement to attach a draft memorandum of appeal in an application seeking leave to appeal out of time; and v. The Learned Trial Judge misdirected himself in totally disregarding the evidence by the appellant on the issues of sickness, age and nancial status. 4. The appellant led submissions dated 20th February 2025, and the respondent led submissions dated 22nd September 2025. 5. We heard the appeal on 5th May 2026. Learned counsel Mr. Wandera appeared for the appellant, while learned counsel Mr. Athunga Washington appeared for the respondent. The counsels gave brief oral highlights of the written submissions. Submissions by the appellant 6. The appellant commenced his submissions by stating that he was a senior citizen who relies on the government social welfare stipend and was of ill health at the time of hearing the appeal, and that he was seeking justice to remedy an error made during the proceedings before the High Court. The appellant identied a single issue, the question whether he deserved an order to appeal out of time. 7. On the merits of the appeal, the appellant stated that the ruling he wanted to appeal against was delivered on 3rd December 2018 and therefore he ought to have lodged a notice of appeal within 28 days, that is in January 2019, but because he fell ill, he was admitted into hospital on 14th January 2019 for an eye surgery. He also asserted that coupled with the ill health, he had nancial challenges and these prevented him from instructing an advocate and that the current advocate agreed to take up the brief on a pro bono basis. 8. According to the appellant, his intended appeal raised arguable points including whether the 1st respondent could inherit property directly from the estate of his grandfather when the1st respondent's father had also been allocated his share of the estate. In this respect, the appellant contended that the 1st respondent’s father had been allocated 3 acres during the lifetime of the respondent’s grandfather, and a further 7 acres through the succession proceedings, to the appellant’s detriment, who was allocated only 3 acres. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2037/eng@2026-09-25 2

page 2 of 5

9. While admitting lapses on his part, the appellant relied on the following passage from Salat v Independent Electoral and Boundaries Commission & 7 Ors (2014) KESC 12 (KLR) to allow him an opportunity to make his case: “ ‘‘the plainti should not in the ordinary way be denied an adjudication of his claim on its merits because of a procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate.’’. 10. Lastly, and calling to his aid Sayers v Clarke Walker (a rm) (2002) EWCA Civ 645, the appellant urged the Court to consider the circumstances of his case, the interests of the administration of justice and the eects of denying him an opportunity to ventilate his cause. Submissions by the respondents 11. The respondents took the view that the appeal lacked merit because the grounds of appeal did not state the errors of law or fact in the impugned ruling. 12. In the view of the respondents, the appellant ought to have invoked the Court’s discretionary jurisdiction under section 7 of the Appellate Jurisdiction Act. And in exercising the jurisdiction, the respondent urged that the factors the Court should consider are, but are not limited to, the subject matter; the period of delay; explanations for the delay; and likely prejudice to be occasioned to the other party. 13. Urging the Court to uphold the ruling of the High Court, the respondent stated that the appellant raised 2 grounds to support his application for extension of time, eyesight illness and nances. The respondents submitted that the High Court was right to reject the explanations because the only medical report exhibited was a discharge summary dated 13th March 2019, while the impugned ruling was delivered on 3rd December 2018, and the application was made on 13th October 2020, almost 2 years later. 14. The respondent further urged that during the proceedings before the High Court, the appellant had been represented by 3 advocates at dierent times; since these advocates led applications after the impugned ruling, the advocates could have raised the question of the appellant’s illness or nancial challenges; and that if the appellant had nancial challenges, he could have applied to the court for appropriate relief. 15. On the issue that the High Court went beyond its remit by perusing the court record, the respondent asserted that did not amount to the court descending into the arena on his (respondents) behalf. 16. Lastly, the respondents submitted that the appellant had introduced new evidence before this Court, which evidence, an adavit sworn on 6th March 2025 and a letter dated 15th March 2023, had not been served upon him. 17. This is a rst appeal. The role of the Court on a rst appeal was well set out in Selle & Ar v Associated Motor Boat Co. Ltd & Ors (1968) EA 123: “ ‘‘This court must reconsider the evidence, evaluate it itself, and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s ndings of fact if it appears, either, that, he has clearly failed on some point to take account of particular circumstances or probabilities materially https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2037/eng@2026-09-25 3

page 3 of 5

to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.’’ 18. We have re-evaluated the record and the proceedings leading to the impugned ruling. At the material time, the courts had taken conicting views on whether leave was required for a party to appeal to this Court from decisions emanating from succession disputes. The Supreme Court claried the position in Wandi v Muchira (suing as the Administrator ad Litem of Jane Muthoni Muchira) (2026) KESC 29 (KLR) when it held that there is an automatic right of appeal from such disputes. 19. Enlargement of time before the High Court is guided by Order 50 Rule 6 of the Civil Procedure Rules which provides: Power to enlarge time “ “Where a limited time has been xed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise”. 20. It emerges from the provision that the power of the High Court to enlarge time is discretionary. And the High Court weighed in on the principles to be considered in exercising discretionary power in Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & Another (2018) eKLR, where it stated: “ ‘‘The most important consideration is for the Court to advert its mind to the fact that the power to grant leave extending the period of ling an appeal out of the statutory period is discretionary and must be granted on a case by case basis. While not a right, it must be exercised judiciously and only after a party seeking the exercise of the discretion places before the Court sucient material to persuade the Court that the discretion should be exercised on its behalf and in their favour.’’ 21. We will, therefore, relook at this appeal on the basis that the appellant had an automatic right of appeal, but within the timelines set in law. 22. The appellant ought to have appealed against the impugned ruling which was delivered on 3rd December 2018, within 14 days. He did not. He made the application on 13th October 2020, nearly 2 years later, and his explanations for the delay were illness and nancial incapacity. In rejecting the explanation on ill health, the High Court found: “ About his eyesight, I do not see how it prevented him from appealing, if it did not prevent him from engaging advocates who lodged various documents in court on his behalf. I am not persuaded that the delay in appealing has been explained”. 23. We have reviewed the record afresh. The impugned ruling, as already stated, was delivered on 3rd December 2018, and there is a discharge summary issued on 12th March 2019 indicating that the appellant had cataract surgery on 14th January 2019 and was discharged on 16th January 2019. The appellant moved the court on 13th October 2020. There is evidence on record that the appellant was https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2037/eng@2026-09-25 4

page 4 of 5

able to instruct advocates who led an Objection to Making of Grant dated 6th May 2019 and an application for stay of execution dated 7th May 2019. 24. In our assessment, although there is evidence that the appellant might have been incapacitated by ill health immediately after the delivery of the ruling, and considering the applications made by the appellant in May 2019, there should have been some explanation why leave was not sought at the same time he moved the High Court in May 2019, and not on 13th October 2020. 25. Perhaps, the nancial diculties could have been an explanation, but the same would fall at on its head because the record shows that from the time of the delivery of the ruling to the time the appellant moved the court on 13th October 2020, he had changed advocates about 3 times. 26. The appellant was seeking an exercise of the court’s discretion. Some reasonable explanation was required but the appellant did not give us such an explanation. In consideration of the above, we nd no merit in the appeal, and it is dismissed with costs to the respondents. 27. Orders accordingly. DATED AND DELIVERED AT KAKAMEGA THIS 25TH DAY OF SEPTEMBER, 2026. P. NYAMWEYA ........................... JUDGE OF APPEAL R. NGETICH ............................. JUDGE OF APPEAL RADIDO S. OKIYO ............................ 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/2026/2037/eng@2026-09-25 5

page 5 of 5