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Court of AppealDismissedExtension of Time Application in intended appeal from Succession Cause No. 467 of 1991

EDITH WAGITHI CHIIRA vs REBECCA WANGUI GICHUHI [1997] KECA 313 (KLR)

Court of Appeal of Kenya
18 March 1997
901 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because the applicant had no legal right to appeal the High Court ruling in the first place.

What this practically means

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Executive summary

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Edith Wagithi Chiira, administrator of the estate of Charles Mwangi Chiira, applied under rule 4 of the Court of Appeal Rules for extension of time to appeal against a ruling of Githinji, J. of the High Court at Nairobi dated 26 April 1996 in Succession Cause No. 467 of 1991. That ruling had granted Rebecca Wangui Mwangi, a claimed beneficiary, an injunction restraining the applicant from collecting rent from L.R.209/7705, ordered the applicant to account for rental income since the deceased's death on 25 January 1995, and authorised the respondent to collect rent equivalent to one third of the building's rental income, identified as eight rooms. Before granting the extension, the Court of Appeal required the applicant to establish a right of appeal. Counsel argued that section 66 of the Civil Procedure Act gave an automatic right of appeal. The court held that section 66 must be read with the definition of 'decree', which depends on adjudication in a 'suit'; proceedings commenced by chamber summons are not a suit, so the ruling was an order, not a decree. Section 75(1) qualifies the section 66 right by listing orders appealable as of right, and Order 42 of the Civil Procedure Rules did not make the ruling appealable. No appeal therefore lay as of right, and none had been taken with leave. The court held it is pointless to extend time for an appeal bound to be incompetent and dismissed the application with no order as to costs on 18 March 1997.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant had a right of appeal from the ruling of the High Court dated 26 April 1996
  2. 2.Whether time should be extended under rule 4 of the Court of Appeal Rules to enable the filing of an intended appeal

Key legal issues

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01

Whether the ruling of the High Court in the succession cause was appealable as of right under section 66 of the Civil Procedure Act

Holding

No. The application before the High Court was by chamber summons and therefore not a 'suit'; the resulting adjudication was an 'order', not a 'decree', and the order was not one listed in section 75(1) or Order 42 of the Civil Procedure Rules as appealable as of right.

Reasoning

Section 66 confers an appeal from decrees and orders of the High Court, but the definition of 'decree' ties it to an adjudication in a 'suit', and a suit must be commenced by originating process such as a plaint, originating summons or petition, not a chamber summons. The ruling was therefore an order, and section 75(1) read with Order 42 qualifies the section 66 right by listing appealable orders; the ruling was not among them, so no appeal lay as of right.

p. 3
02

Whether extension of time should be granted where the intended appeal is incompetent

Holding

No. Extension of time is pointless where the intended appeal has no right of appeal and no leave has been obtained, because the appeal would be incompetent.

Reasoning

The court reasoned that rule 4 discretion should not be exercised to facilitate a filing that cannot succeed. Since the applicant could not satisfy the court that a right of appeal existed, and no leave had been sought or granted, extending time would merely produce an incompetent appeal. The application was therefore dismissed with no order as to costs.

p. 3

Legal principles established

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  • An application commenced by chamber summons is not a 'suit' within the meaning of the Civil Procedure Act, so an adjudication on it is not a 'decree' but an 'order'.
  • The general right of appeal under section 66 of the Civil Procedure Act is qualified by section 75(1) and Order 42 of the Civil Procedure Rules; where an order is not listed, no appeal lies as of right and leave is required.
  • The Court will not extend time under rule 4 to enable the filing of an appeal that is bound to be incompetent for want of a right of appeal or leave.

Court orders

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  1. 1.The application for extension of time is dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
Succession Cause No. 467 of 1991
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (application to extend time within which to file an intended appeal)

Relief refused

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Extension of time to file an intended appeal against the High Court ruling of 26 April 1996

The intended appeal would be incompetent because there is no right of appeal from the ruling, either as of right under the Civil Procedure Act or with leave, and extending time for an appeal that is bound to be incompetent serves no purpose

p. 3

Costs

The application was dismissed with no order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Thus the right given by s.66 has been qualified by s.75(1) of the Act. Moreover, under O.42 of the Civil Procedure Rules, the order or ruling intended to be appealed from is not an appealable order.
p. 3Right of appeal under the Civil Procedure Act
where a party intends to appeal where there is no right of appeal and has not obtained leave of the court to appeal, there is no point in extending the time to enable him to file the appeal out of time as it is bound to be incompetent
p. 3Extension of time where appeal is incompetent
I therefore do not see any merit in the application and hereby dismiss it with no order as to costs.
p. 3Final orders and costs

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "EDITH WAGITHI CHIIRA vs REBECCA WANGUI GICHUHI [1997] KECA 313 (KLR)", Case Analysis (1997). Extension of Time Application in intended appeal from Succession Cause No. 467 of 1991. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/313/eng@1997-03-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.