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Court of AppealDismissedCivil Application No. 22 of 2015· [2016] KECA 569 (KLR)

Joyce Bochere Nyamweya v Jemima Nyaboke Nyamweya & another [2016] KECA 569 (KLR)

Court of Appeal
19 May 2016
Martha Karambu KoomeM. K. KoomeDMD. MusingaSKS. Gatembu Kairu
2,587 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed a challenge to succession appeals because the application to strike them out was filed too late, confirming a strict 30-day limit.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Koome, Musinga and Gatembu, JJ.A) on a notice of motion by Joyce Bochere Nyamweya seeking to strike out Notices of Appeal filed by Jemima Nyaboke Nyamweya and Paul Nyamweya against a judgment of Sitati J. of the High Court at Kisii delivered on 17 December 2014 in H.C.C. Succession Cause No. 451 of 1996. That judgment revoked a grant of probate over the estate of the late James Nyamweya and directed a fresh distribution, having found that the deceased's daughters had been discriminatorily disinherited and that the late mother's estate had not been treated separately. The applicant argued that under Rule 39 of the Court of Appeal Rules the respondents needed leave of the High Court to appeal, relying on Rhoda Wairimu Kioi. The respondents countered that no leave is required, invoking Article 164(3) of the Constitution and citing Peter Wahome Kimotho, and that the striking-out application was itself filed far outside the 30-day window in the proviso to Rule 84. The court held that the proviso is couched in mandatory terms and left it no discretion; following Gichuki King'ara, an application filed outside thirty days is a non-starter and an afterthought. It expressly declined to resolve the competing schools of thought on whether leave is required for succession appeals, holding it not opportune to do so on the application. The application was dismissed with costs to the 1st respondent.

Key legal issues

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01

Whether the proviso to Rule 84 of the Court of Appeal Rules is mandatory

Holding

The 30-day time limit in the proviso to Rule 84 is mandatory; a striking-out application filed outside it is incompetent and the court has no discretion to excuse the delay

Reasoning

The court noted the application was admitted to be filed outside the 30-day period. It declined counsel's invitation to apply a liberal, overriding-objective construction, holding the time frame set by the framers of the Rules cannot be second-guessed, and aligned itself with Gichuki King'ara which held such late applications are non-starters and afterthoughts.

p. 4
02

Whether appeals in succession matters from the High Court require leave

Holding

The court expressly declined to decide whether leave is required for first appeals from the High Court in succession matters, because the fate of the application had first to be addressed

Reasoning

The court acknowledged two schools of thought: Rhoda Wairimu Kioi holding that leave of the High Court is required, and Peter Wahome Kimotho holding that under Article 164(3) all High Court decisions are appealable without leave. It found it not opportune to resolve the question in this interlocutory application.

p. 4

Legal principles established

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  • An application to strike out a notice of appeal or an appeal under Rule 84 must be brought within thirty days of service of the notice or record of appeal, and the proviso is mandatory; an application filed outside that period is incompetent and must be dismissed

Court orders

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  1. 1.The application to strike out the Notices of Appeal was dismissed with costs to the 1st respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 43
  • Court of Appeal RulesRule 84
  • Court of Appeal RulesRule 39(b)
  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Law of Succession ActSection 50(1)
  • Civil Procedure ActSection 75
  • Civil Procedure RulesOrder 44
  • Probate and Administration RulesRule 63
  • Constitution of KenyaArticle 164(3)

Cases cited (5)

  • Rhoda Wairimu Kioi & John Kioi Karanja v Mary Wangui Karanja and Salome Njeri Karanja
    CA Civil App. NAI 69 of 2004
  • Edward Njuguna Kangethe vs. Joel Kilemi Mutinda & another
    [2015] eKLR
  • Municipal Council of Mavoko vs. Aristocrats Concrete Co. Ltd
    [2015] eKLR
  • Peter Wahome Kimotho vs. Josphine Mwinyeria Mwanu
    Civil Appeal No. 52 of 2011 Nyeri (unreported)
  • Gichuki King'ara & Co Advocates v AL Jalal Enterprises Ltd & Others
    Civil Appl. No. NAI 211 of 2012 (unreported)
On appeal from
High Court of Kenya at Kisii
H.C.C. Succession Cause No. 451 of 1996
Jurisdiction invoked
Rules 42, 43 & 84 of the Court of Appeal Rules and Section 3A of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Joyce Bochere Nyamweya v Jemima Nyaboke Nyamweya & another [2016] KECA 569 (KLR)", Case Analysis (2016). Civil Application No. 22 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/569/eng@2016-05-19

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