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Court of AppealDismissedCivil Application No. NAI 54 of 2015· [2017] KECA 237 (KLR)

Annah Mwihaki Wairuru v Hannah Wanja Wairuru [2017] KECA 237 (KLR)

Court of Appeal
19 October 2017
HOHannah Okwengu
1,577 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to excuse a 207-day delay in appealing a succession ruling, blaming a lawyer is not enough.

What this practically means

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Executive summary

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This was a ruling by Okwengu, JA, sitting single-handed in chambers, on a motion under Rule 4 of the Court of Appeal Rules seeking extension of time to file a notice of appeal and leave to appeal out of time from a High Court ruling of Kimaru, J dated 26th June 2014 in Succession Cause No. 2800 of 2001. The High Court had found that the respondent was a wife of the deceased and a dependant under Section 29(a) of the Law of Succession Act, that this fact had been concealed when the applicant obtained the grant of administration, and it revoked the grant and directed a new grant in the joint names of the applicant and the respondent. The applicant explained the delay (221 days against the 14 days allowed under Rule 75, an excess of 207 days) on the basis that her former advocates never informed her of the ruling, which she learned of only in February 2015. The respondent opposed, asserting that the applicant was present when the ruling was delivered and that the intended appeal would merely delay distribution of the estate. Applying the well-settled factors from Leo Sila Mutiso v Rose Hellen Wangari Mwangi and Njuguna v Magichu, the court held the delay inordinate and inexcusable. It found the applicant's blame of her former advocate unsubstantiated, noting evidence that the ruling had been brought to the advocate's attention and enforcement proceedings served. The court declined to condone what it regarded as serious advocate negligence inconsistent with the duties of an officer of the court, and found further delay prejudicial to the respondent, observing that the applicant's concerns could still be raised during distribution and confirmation of the grant. The motion was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the delay of 207 days in filing the notice of appeal was excusable

Holding

The delay was inordinate and inexcusable; the applicant failed to substantiate her claim that her former advocate never informed her of the ruling, and she took no action despite knowing of the revocation application.

Reasoning

The applicant blamed her former advocates for failing to inform her of the 26th June 2014 ruling. The court found no evidence supporting that claim; documents exhibited showed the respondent had brought the ruling to the former advocate's attention and had moved to enforce the order. The applicant had participated in the hearing of the revocation application and gave no explanation of steps taken to learn its outcome.

p. 3
02

Whether negligence by an advocate should be condoned in the exercise of the extension-of-time discretion

Holding

No. A serious case of advocate negligence amounting to professional misconduct cannot be covered up by the court treating it lightly.

Reasoning

The court characterised the former advocate's conduct as more than an innocent mistake: he ought to have advised the applicant of the ruling and to have responded to the respondent's enforcement application which he had been served with. An advocate is an officer of the court expected to be upright and dependable, and the court cannot reward such misconduct with an extension of time.

p. 3
03

Whether prejudice to the respondent outweighed the applicant's interest in pursuing the appeal

Holding

Further delay was prejudicial because the respondent could not access her share of the estate; the applicant's issues could be canvassed during distribution and confirmation of the grant.

Reasoning

Although the matter concerned personal status and dependency under Section 29(a) of the Law of Succession Act, the court held that the issues raised in the intended appeal could still be raised during distribution of the estate and confirmation of the grant. Continued delay denied the respondent access to her share of the estate.

p. 3

Legal principles established

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  • In deciding whether to extend time for appealing, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
  • The Rule 4 discretion is unfettered but must be exercised judicially on sound factual and legal basis, with the main concern being to do justice between the parties.
  • A court will not condone an advocate's negligence that amounts to serious professional misconduct by granting an extension of time.

Court orders

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  1. 1.The applicant's motion dated 6th February 2015 is dismissed
  2. 2.Each party shall bear their own costs

Authorities

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Legislation

  • Law of Succession ActSection 29(a)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75

Cases cited (2)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No. Nai. 255 of 1997 (unreported)
  • Njuguna v Magichu & 73 others
    2003 KLR 507
On appeal from
High Court of Kenya
Succession Cause No. 2800 of 2001
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (single Judge in chambers, application for extension of time and leave to appeal out of time)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (19)

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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, "Annah Mwihaki Wairuru v Hannah Wanja Wairuru [2017] KECA 237 (KLR)", Case Analysis (2017). Civil Application No. NAI 54 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/237/eng@2017-10-19

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