Zeudi Mirach & 1 other v 1. Gide Fissah Ale Goitom ) 2. Deheb Behrane Abed ) & 2 others
The bottom line
#Kenya's Court of Appeal allowed a late appeal because the delay came from translating foreign documents, not the appellant's negligence.
What this practically means
#Executive summary
#Key legal issues
#Whether the five-month delay in filing the extension application was inordinate
The delay was not inordinate because it was attributable to the translation and diplomatic certification of the Amharic documents, a process outside the applicant's control.
The appeal had been struck out because two Amharic documents in the record were not translated, contrary to Rule 85(1)(f). The applicant then had to find an interpreter and route the translated documents through the Ministry of Foreign Affairs to the Ethiopian Embassy for certification. The respondent did not dispute this process, only its length. The court found the resulting delay excusable and not inordinate.
Whether extension of time should be granted notwithstanding the delay and the respondent's prejudice
Extension was granted; the respondent's prejudice from the applicant's possession of the estate was a factor to weigh, but the interest of justice favoured a hearing on the merits.
The court acknowledged the respondent's position that the applicant was in possession of and benefiting from the estate while the litigation dragged on, and that litigation must come to an end. However, following the dicta of Shah, JA and Omolo, JA, the court held that this consideration must be balanced against the wider interest of justice that cases be resolved on the merits, and so exercised its discretion in favour of the applicant.
Legal principles established
#- The consideration that litigation must come to an end must be weighed against the wider interest of justice that cases be determined on their merits.
- A delay occasioned by a certification process not within the applicant's control may not be inordinate delay for purposes of extension of time.
Court orders
#- 1.The application for extension of time is allowed
- 2.The applicant shall file and serve her notice of appeal within 7 days from the date of the order
- 3.The applicant shall thereafter file her memorandum and record of appeal within 7 days from the date of filing of the notice
- 4.Costs of the application shall be in the intended appeal
- On appeal from
- High Court of Kenya
- Succession Cause No. 843 of 1995
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zeudi Mirach & 1 other v 1. Gide Fissah Ale Goitom ) 2. Deheb Behrane Abed ) & 2 others", Case Analysis (1999). Civil Application (extension of time) arising from Succession Cause No. 843 of 1995 and intended Appeal No. 138 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/43/eng@1999-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.