Susan Wamboi Chepkaitany v In re Estate of Lazaro Chepkaitany Chebii (Deceased) [2019] KECA 282 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time to appeal because the applicant blamed her former advocates without any documents proving it.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of approximately four months in lodging the Notice of Appeal was sufficiently explained
The delay was not explained: no letter of instruction, correspondence or document proved that Kanyi J & Company Advocates were instructed or were responsible for the failure to lodge the Notice, so the blame on the former advocates was unsupported
The Court examined the record for evidence of the alleged instruction to the former advocates and found none: no letter of instruction, no proof of diligent pursuit, and no documentation of the transfer of the file to the new firm. Attribution of blame to counsel required evidential support, which the applicant did not provide, so the reason for the delay factor failed.
Whether the intended appeal had a chance of success
The applicant failed to demonstrate arguability because the record lacked the facts of the dispute and, critically, the High Court's judgment or ruling was not annexed, making the prospects of the intended appeal unassessable
The Court could not weigh the grounds of complaint in the draft memorandum against the High Court's reasoning because the decision under appeal was not before it. A party asserting that an intended appeal is arguable must supply the material enabling the Court to gauge the likelihood of success; an unverified assertion of a high chance of success does not suffice.
Whether the respondent would suffer prejudice if the extension were granted
The applicant conceded, and the Court agreed, that the respondent intended to appeal against the same decision and would therefore suffer no prejudice
On the prejudice factor alone the Court accepted the applicant's position, noting the respondent also intended to appeal. However, since the other factors (explanation for delay and arguability) failed, this factor could not save the application.
Legal principles established
#- Under rule 4 of the Court of Appeal Rules the Court has an unfettered but judiciously exercised discretion to extend time, guided by the length of the delay, the reason for the delay, the chances of success of the appeal, and prejudice to the respondent
- A party seeking extension of time must place material before the Court sufficient to exercise the discretion; the discretion is exercised upon reason, not sympathy
Court orders
#- 1.The Notice of Motion dated 20th May 2019 be and is hereby dismissed with costs to the respondent
- On appeal from
- High Court
- Jurisdiction invoked
- Article 159(2) of the Constitution; sections 3A and 3B of the Appellate Jurisdiction Act; rules 4 and 42(2) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Susan Wamboi Chepkaitany v In re Estate of Lazaro Chepkaitany Chebii (Deceased) [2019] KECA 282 (KLR)", Case Analysis (2019). Notice of Motion dated 20th May 2019 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/282/eng@2019-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.