MOMBASA, Kenya — The Supreme Court has dismissed an attempt by the estate of the late Abdalla Mohamed Abdalla to reopen a long-running Mombasa land dispute, ruling that the applicants failed to provide a sufficient explanation for a six-year delay in seeking to appeal.
A five-judge bench comprising Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu, and Justices Smokin Wanjala, Isaac Lenaola, and William Ouko declined the application seeking permission to file a Notice of Appeal and lodge an appeal out of time.
The decision effectively brings to a close a dispute involving several parcels identified as Mombasa/Block XVI/583, 598, 606, 607, 608, and 609.
The estate had accused the County Government of Mombasa of unlawfully entering the property, demolishing structures, and constructing a road across the land without following due process or providing compensation.
The dispute had earlier moved through the Environment and Land Court and the Court of Appeal.
In 2018, the Environment and Land Court found that although the county had trespassed on the property, the affected section had historically served as a public access road. The court also determined that there were no compensable developments on the land before the road works began.
The Court of Appeal upheld that decision on March 7, 2019, denying the claim for compensation and restoration of the property.
Following Abdalla’s death in January 2021, his estate sought to challenge the appellate decision at the Supreme Court. However, the application was filed in January 2026, more than six years after the Court of Appeal ruling.
The estate argued that Abdalla had been suffering from a terminal illness when the appellate judgment was delivered and was unable to provide instructions for a further appeal. It also said the administrator of the estate had pursued negotiations and other legal options before approaching the Supreme Court.
The estate further cited financial difficulties, including a move by SBM Bank Kenya Limited to auction the property over an outstanding loan of Sh55 million.
However, the County Government of Mombasa opposed the application, arguing that the delay was excessive and unexplained.
The county told the court that Abdalla had been represented by lawyers throughout the proceedings and that there was no evidence showing he lacked capacity to instruct counsel after the Court of Appeal decision.
It further argued that even after probate was granted, the estate failed to promptly seek an extension of time and instead pursued other proceedings.
In its ruling, the Supreme Court emphasized that extension of time is a discretionary remedy and not an automatic entitlement.
The judges noted that the estate should have acted soon after the Court of Appeal judgment, but instead waited until January 2026 before seeking intervention from the apex court.
The bench acknowledged Abdalla’s illness but found that it did not explain the lengthy period of inactivity, particularly after the estate became legally operational.
“The applicant has not provided a cogent explanation for the delay from November 2021, when the grant of probate was issued, up to January 2026 when this motion was filed. The delay is inordinate and cannot be excused,” the court stated.
The judges also observed that the timing of the application appeared connected to the bank’s recovery efforts rather than a genuine attempt to challenge the earlier judgment.
The Supreme Court further held that failure to file a Notice of Appeal was a jurisdictional barrier preventing it from considering further requests, including orders seeking protection of the property.
“In the absence of a Notice of Appeal, which is a jurisdictional prerequisite, this Court cannot move a step further. The motion is therefore incompetent and must fail,” the court held.
The ruling reinforces the principle that while courts protect property rights and access to justice, litigants must comply with procedural timelines and legal requirements.
The estate was ordered to bear the costs of the proceedings, ending an almost seven-year effort to revive the Mombasa land dispute.
