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Court of AppealAllowedNotice of Motion dated 18th November, 2016· [2018] KECA 596 (KLR)

Alice Wamaitha v Jane Wanjiru [2018] KECA 596 (KLR)

Court of Appeal of Kenya
18 May 2018
SKS. ole Kantai
1,044 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a daughter-in-law extra time to appeal because she couldn't get the court file, showing delays can be forgiven with good reason.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi by ole Kantai, JA, on a Notice of Motion dated 18th November 2016 seeking leave to file and serve a notice of appeal out of time against a High Court ruling delivered on 23rd September 2016 in a succession dispute. The applicant, a daughter-in-law of the deceased and co-administrator of the estate, explained that the High Court file was transferred from Nairobi to Kiambu immediately after delivery of the ruling, before her advocates could obtain a copy, and that the file could not be traced until 16th October 2016. The respondent opposed, arguing that leave earlier obtained from the High Court sufficed and that the delay from October to November 2016 was long and unexplained. The court adopted the settled rule 4 principles as captured in Wachiuri Wahome v Festus Gatheru Wahome, holding the discretion unfettered and the relevant factors non-exhaustive: length of and reason for delay, arguability, prejudice, effect on public administration, compliance with time limits, resources of the parties and public importance. Satisfied that counsel made reasonable efforts to trace the file, that the ensuing one-month delay was not inordinate, and that it was arguable whether a daughter-in-law may inherit her late husband's share of the estate, the court allowed the motion. The notice of appeal was to be filed within fourteen days and the record of appeal within thirty days thereafter; costs of the motion were to abide the intended appeal.

Key legal issues

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01

Principles governing extension of time under rule 4

Holding

The discretion is unfettered and the relevant factors include length of and reason for delay, arguability, prejudice, and effect on public administration; the list is not exhaustive.

Reasoning

The court adopted the well-settled formulation from Wachiuri Wahome v Festus Gatheru Wahome, tracing the jurisprudence since the removal of the 'sufficient reason' stricture in 1985. The factors are relevant but not exhaustive, and the court may consider any relevant circumstance.

p. 2
02

Whether the applicant's delay was excusable

Holding

Yes - the file had been transferred to the High Court at Kiambu before the ruling could be copied, and counsel made reasonable efforts to trace it; a further delay of about one month was not inordinate.

Reasoning

Letters from the applicant's law firm following up on the file and the ruling demonstrated reasonable effort. The court file could not be traced until 16th October 2016, and the month taken thereafter to compile documents for the motion was not inordinate.

p. 2
03

Arguability of the intended appeal

Holding

It is arguable whether a daughter-in-law of a deceased is entitled to inherit part of the estate to which her late husband would have been entitled.

Reasoning

The applicant's husband, a son of the deceased estate owner, had died, and the effect of the High Court ruling would be to disinherit the applicant. The court found this raised an arguable point justifying extension of time.

p. 2

Legal principles established

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  • This is a single-judge discretionary ruling under rule 4; it does not establish a binding precedent, but it restates the settled factors governing extension of time.

Court orders

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  1. 1.Leave granted to file and serve a notice of appeal out of time; the motion is allowed
  2. 2.The applicant to file the notice of appeal within fourteen days
  3. 3.The record of appeal to be filed within 30 days thereafter
  4. 4.Costs of the motion to abide the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (5)

  • Wachiuri Wahome v Festus Gatheru Wahome & 6 others
    [2016] eKLR
  • Mutiso v Mwangi
    Civil Application No. NAI 255 of 1997 (UR)
  • Mwangi v Kenya Airways Limited
    [2003] KLR 486
  • Major Joseph Mwereri Igweta v Murika M'Ithare and Attorney-General
    Civil Application No. NAI 8 of 2000 (UR)
  • Murai v Wainaina (No. 4)
    1982 KLR 38
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension 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 (3)

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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, "Alice Wamaitha v Jane Wanjiru [2018] KECA 596 (KLR)", Case Analysis (2018). Notice of Motion dated 18th November, 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/596/eng@2018-05-18

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