Aboge v Aboge & 2 others (Civil Application E113 of 2025) [2025] KECA 2062 (KLR) (1 December 2025) (Ruling)
Neutral citation:
[2025] KECA 2062 (KLR)
Republic of Kenya
Civil Application E113 of 2025
LK Kimaru, JA
December 1, 2025
[IN CHAMBERS]
Between
Lucy Wambui Aboge
Applicant
and
Orpha Adongo Aboge
1st Respondent
Betreace Wamuyu Aboge
2nd Respondent
George Abich Owalo
3rd Respondent
(Being an application for extension of time to appeal from the Judgment of the High Court of Kenya at Migori (R. Wendoh, J) Dated 20th October, 2023 in HCC Succ. Cause No. 405 of 2024
Succession Cause 405 of 2014
)
Ruling
1.The appeal that is intended to be filed by the applicant arises from the Judgment rendered by the High Court sitting at Migori (Wendoh R. J) on 20th October, 2023 in a Succession dispute. Pursuant to Rule 50(1) of the Law of Succession Act, the applicant sought leave from the High Court to file the appeal to this Court. In a Ruling delivered on 31st October, 2025, the High Court (Ong’injo, J) declined to grant leave. Undeterred, applicant moved to this Court seeking leave to be allowed to lodge the appeal to this Court. In a Ruling delivered on 11th July, 2025, this Court (P. Nyamweya, JA) allowed the application. In its Ruling, this Court stated that:
2.It was on the basis of the leave that was granted by this Court, that the applicant filed the present application on 22nd July 2025 essentially under Rule 4 of the Court of Appeal Rules seeking to be granted leave to appeal out of time against the Judgment of the High Court rendered on 20th October, 2023. The application is supported by the grounds stated on the face of the application and the annexed affidavit of the applicant. The applicant attributes the delay in lodging the appeal in time to the time it took her to obtain the leave from the court to file the appeal before this Court. The applicant gave the litigation history that prevented her from lodging the appeal in time. She is emphatic that her appeal raises weighty grounds that are likely to succeed on appeal. She urged the Court to allow the application, as in her view, the respondents will not suffer any prejudice.
3.The application is unopposed. The respondents filed no replying affidavit in opposition to the application. Neither did they file written submission despite being served by the Court.
4.This Court has considered the applicant’s application, the submissions and the bundle of authorities relied on. 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. (See Andrew Kiplagat Chemasingo v. Paul Kipkorir Kibet [2018] eKLR).
5.In the present application, it was clear to the Court that the applicant was prevented from lodging the appeal in time due to the time it took her to pursue the leave to appeal to this Court as per the requirement of the Law of Succession Act. This Court is satisfied with the explanation given by the applicant. It took the applicant a period of nearly two years before she was finally able to obtain leave from this Court. The applicant has persuaded this Court of her desire to appeal to this Court especially in light of the proposed grounds of appeal that she has alluded to in the affidavit in support of the application. She should be given a chance to ventilate her appeal before this Court.
6.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.
DATED AND DELIVERED AT KISUMU THIS 1ST DAY OF DECEMBER,2025.L. KIMARUJUDGE OF APPEALI certify that this is a true copy of original.signedDEPUTY REGISTRAR