Jacinta Wanza Makenzi v Agnes Mutindi Kithusi & 4 others [2018] KECA 351 (KLR)
The bottom line
#The Court of Appeal refused to revive a late succession appeal, ruling that a two-year unexplained delay and the sale of the property left the case hopeless.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant gave a reasonable explanation for the inordinate delay
The court held there was no reasonable explanation: the applicant knew of the ruling on 29th September 2015 but filed the application only on 17th October 2017, and never filed a notice of appeal even after learning of the ruling.
Although the impugned ruling was delivered in the applicant's absence, she admitted knowledge of it in September 2015. Her first request for certified copies was made by letter dated 21st June 2017, nearly two years later. Since no certified copies are needed to file a notice of appeal, the delay in obtaining them did not excuse the failure to act. The delay of almost two years was unexplained and inordinate.
The chances of success of the intended appeal
The court entertained grave doubts about the appeal's chances of success, particularly against the purchaser, as the property had been sold by public auction pursuant to a court order and the proceeds distributed.
The grant had been confirmed in 2008 and, following disputes among beneficiaries, the High Court ordered in November 2010 that the suit property be sold and proceeds shared per the confirmed grant. The sale was carried out by public auction to Hosea Muchungu Muthoga, an innocent purchaser for value now holding a certificate of lease, who is not a party to the application. The proceeds were distributed as ordered. An appeal against such a state of affairs had remote prospects of success.
The court's duty under the overriding objective
Sections 3A and 3B of the Appellate Jurisdiction Act impose a duty on the Court to ensure that the factors considered in exercising its powers facilitate the just, expeditious, proportionate and affordable resolution of disputes.
In weighing the unexplained inordinate delay, the court invoked the overriding objective under Sections 3A and 3B of the Appellate Jurisdiction Act, reinforcing that compliance with time limits and expedition in resolving disputes are material considerations in the exercise of the Rule 4 discretion.
Legal principles established
#- In an application for extension of time under Rule 4, the court's discretion is unfettered and the applicant must explain to the court's satisfaction that the discretion should be exercised in their favour, considering factors such as the period of and reason for delay, chances of success, and prejudice to the respondent.
- An applicant does not need certified copies of the proceedings, judgment or ruling in order to file a notice of appeal; inability to obtain such copies does not excuse failure to lodge a notice of appeal in time.
Court orders
#- 1.The notice of motion dated 17th October 2017 seeking extension of time and stay is dismissed
- 2.Each party to bear their own costs
- On appeal from
- High Court of Kenya, Family Division
- Succession Cause No. 293 of 2004
- Jurisdiction invoked
- Rules 4, 42(1), 43(1) and 47 of the Court of Appeal Rules, 2010, read with Sections 3A and 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacinta Wanza Makenzi v Agnes Mutindi Kithusi & 4 others [2018] KECA 351 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/351/eng@2018-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.