Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application (Nairobi) arising from Succession Cause No. 2806 of 2007· [2016] KECA 223 (KLR)

Danson Mugwi Njoroge & 2 others v Lucy Njoki Njoroge [2016] KECA 223 (KLR)

Court of Appeal of Kenya
15 September 2016
HOH. M. Okwengu
1,244 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to revive a late estate appeal, ruling that a plausible explanation for delay alone is not enough to win an extension of time.

What this practically means

#

Executive summary

#
This is a single-judge decision of the Court of Appeal at Nairobi (Okwengu, JA) delivered on 15th September 2016 on a Notice of Motion dated 31st March 2016 by three administrators of the estate of the late Rhoda Njoki Njoroge. The applicants sought leave to file and serve a record of appeal out of time and leave to lodge an appeal against a High Court ruling of Kimaru, J. of 19th April 2013, which nullified the grant of letters of administration issued to them and ordered a fresh joint grant in their names together with the respondent, Lucy Njoki Njoroge, while also declaring the respondent and her children dependants of the deceased. The applicants, said to be resident in Canada, explained the roughly two-year delay by their former advocate's failure to file the memorandum and record of appeal. The Court held that under Rule 4 of the Court of Appeal Rules extension of time may be granted before or after the act, so retrospective leave was competent despite the documents already being on file. Applying the established factors - length and reason for delay, prejudice to the respondent, and arguability - the Court found the explanation plausible but declined to exercise its discretion in the applicants' favour because the High Court orders left them protected and beneficiaries' shares would be settled at confirmation of the grant. The motion was dismissed with no order as to costs, each party bearing their own costs.

Key legal issues

#
01

Retrospective extension of time under Rule 4

Holding

The fact that the memorandum and record of appeal were filed before leave was sought does not preclude the Court from granting leave retrospectively deeming the appeal properly filed

Reasoning

Rule 4 expressly permits extension of time whether before or after the doing of the act. The respondent's objection that leave could not be applied for retrospectively after the record had been filed was therefore misplaced, as the rule's plain wording allows post-hoc extension.

p. 2
02

Exercise of judicial discretion on extension of time

Holding

Although the delay was explained and not so inordinate, the discretion was not exercised in the applicants' favour because the applicants were protected by the orders of the High Court and no prejudice would arise

Reasoning

The applicants intended to appeal, as shown by the immediate notice of appeal, and their explanation for the delay was plausible. However, the ruling nullifying the grant still provided for a joint grant in their names with the respondent, and beneficiaries' shares would be determined at confirmation of the grant, so no substantial loss would be suffered.

p. 3

Legal principles established

#
  • Under Rule 4 of the Court of Appeal Rules, extension of time may be granted either before or after the doing of the act, so leave may be granted retrospectively even where the document has already been filed
  • In exercising the power to extend time under Rule 4, a single judge has unfettered discretion which must be exercised judicially, considering the length of and reason for the delay, prejudice to the respondent, and whether the appeal is arguable

Court orders

#
  1. 1.The applicants' motion dated 31st March, 2016 is dismissed
  2. 2.Each party shall bear their own costs

Authorities

#

Legislation

  • Appellate Jurisdiction ActSection 3A & 3B
  • Court of Appeal Rules (2010)Rule 4
  • Court of Appeal Rules (2010)Rule 47
  • Arbitration ActSection 39(3)(b)

Cases cited (2)

  • Origo & Another vs Mungala
    [2005] 1 KLR 178
  • Gitetu vs Kenya Commercial Bank Ltd
    [2009] KLR 545
On appeal from
High Court of Kenya
Succession Cause No. 2806 of 2007
Jurisdiction invoked
Section 3A & 3B of the Appellate Jurisdiction Act; Rules 4 and 47 of the Court of Appeal Rules (2010); Section 39(3)(b) of the Arbitration Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Danson Mugwi Njoroge & 2 others v Lucy Njoki Njoroge [2016] KECA 223 (KLR)", Case Analysis (2016). Civil Application (Nairobi) arising from Succession Cause No. 2806 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/223/eng@2016-09-15

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