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Court of AppealAllowedCivil Application (Nyeri) - application dated 24th February 2010 arising from High Court Succession Cause No. 139 of 1999· [2013] KECA 199 (KLR)

Mathenge v Mathenge (Civil Application 50 of 2010) [2013] KECA 199 (KLR)

Court of Appeal of Kenya
17 October 2013
OTOtieno-Odek
2,245 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a family nearly two years' late appeal a chance, ruling illness excused the delay and procedural mistakes weren't fatal.

What this practically means

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Executive summary

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This was a single-judge ruling of the Court of Appeal at Nyeri (Otieno-Odek, JA) on an application under Rule 4 of the Court of Appeal Rules for extension of time to lodge a Notice of Appeal out of time against the judgment of Kasango, J. in High Court Succession Cause No. 139 of 1999 delivered on 21st April 2008. That judgment confirmed a grant over the Estate of Gichane Mathenge and ordered the suit property, Thegenge/Karia/645, to be transferred to the respondent, with Gatarakwa/Gatarakwa/Block III/785 transferred to the applicant. The applicant explained the delay of almost one year and nine months by ill health, having died on 2nd October 2010 during the pendency of the application; his estate was substituted by Georgina Wangari Gichane. The respondent opposed, contending that the applicant attended court after judgment, and that no draft Memorandum of Appeal was attached. The court restated the settled Rule 4 factors - length and reason for delay, arguability, and prejudice - holding that the discretion is unfettered but must be exercised judicially. It accepted the illness explanation, held the missing draft Memorandum not fatal since the grounds were advanced in submissions (a lay applicant could not be presumed to know the rules), found the grounds arguable, and held any prejudice compensable by costs. The application was allowed with leave to file the Notice of Appeal within seven days. No costs order was made in the final orders.

Key legal issues

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01

Whether the delay of almost one year and nine months in lodging the Notice of Appeal was excusable

Holding

The explanation of ill health was accepted as reasonable and excusable, the applicant having died after the judgment was delivered.

Reasoning

The applicant deponed that he fell ill when judgment was delivered on 21st April 2008 and was undergoing treatment until his death on 2nd October 2010. Although the respondent contended that the applicant made several court appearances after judgment, the single judge accepted, with reluctance, that the applicant was ill, and found the explanation for the delay reasonable and excusable.

p. 3
02

Whether failure to attach a draft Memorandum of Appeal rendered the application incompetent

Holding

The omission was not fatal because the intended grounds of appeal were advanced through the application and counsel's submissions.

Reasoning

The purpose of attaching a draft Memorandum is to enable the court assess arguability. The applicant, a lay person acting in person when filing, may not have known the rules of procedure; the court adopted Lord Atkin's dictum that no one is presumed to know all court rules. The grounds - that land belonging to a third party was ordered transferred and that the applicant was disinherited - were arguable.

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Whether the respondent would suffer prejudice if the extension was granted

Holding

Any prejudice to the respondent could be compensated by costs, so the demands of justice favoured allowing the application.

Reasoning

The court invoked the constitutional right to a hearing and proportionality, holding that even where courts have inherent jurisdiction to dismiss suits, this should be done in circumstances protecting the integrity of the court process from abuse amounting to injustice. The suit property had been transferred, but the court held such prejudice was compensable in costs.

p. 4

Legal principles established

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  • The discretion under Rule 4 to extend time is unfettered but must be exercised judicially, guided by the length of and reason for delay, chances of the appeal succeeding, and prejudice to the respondent.
  • An arguable appeal need not be one that must succeed; it is one that ought to be argued fully before the Court.
  • Failure to attach a draft Memorandum of Appeal to a Rule 4 application is not necessarily fatal where the intended grounds of appeal are otherwise advanced before the court.

Court orders

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  1. 1.Application allowed
  2. 2.Applicant granted leave to file the Notice of Appeal within seven days from the date of the ruling

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75

Cases cited (6)

  • Henry Mukora Mwangi -vs- Charles Gichina Mwangi
    Civil Application No. Nai. 26 of 2004
  • Mwangi -vs- Kenya Airways Ltd
    [2003] KLR 486
  • Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi
    Civil Application No. Nai. 255 of 1997 (unreported)
  • Evans -vs- Bartam
    (1973) AC 437, 479
  • Joseph Wanjohi Njau -vs- Benson Maina Kabau
    Civil Application No. 97 of 2012
  • Richard Nchapi Leiyagu -vs- IEBC & 2 others
    Civil Appeal No. 18 of 2013
On appeal from
High Court of Kenya
Succession Cause No. 139 of 1999
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion to extend time)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mathenge v Mathenge (Civil Application 50 of 2010) [2013] KECA 199 (KLR)", Case Analysis (2013). Civil Application (Nyeri) - application dated 24th February 2010 arising from High Court Succession Cause No. 139 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/199/eng@2013-10-17

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