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Court of AppealDismissedNotice of Motion dated 20th May 2019 (Civil Application)· [2019] KECA 282 (KLR)

Susan Wamboi Chepkaitany v In re Estate of Lazaro Chepkaitany Chebii (Deceased) [2019] KECA 282 (KLR)

Court of Appeal of Kenya
17 October 2019
1,349 words in judgment
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The bottom line

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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

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Mombasa (A.K. Murgor, JA) dismissing Susan Wamboi Chepkaitany's Notice of Motion dated 20th May 2019 seeking extension of time to file and serve a Notice and record of appeal against a High Court ruling of 25th January 2019 concerning distribution of a deceased's estate between two households. The motion was anchored on Article 159(2) of the Constitution, sections 3A and 3B of the Appellate Jurisdiction Act and rules 4 and 42(2) of the Court of Appeal Rules. The applicant blamed her former advocates, Kanyi J & Company Advocates, for inadvertently failing to lodge a Notice of Appeal, and relied on her new firm's prompt action after receiving the file on 8th May 2019. Applying the Leo Sila Mutiso principles, the Court found a delay of about four months that was not explained: there was no documentary evidence of the alleged instruction to the former advocates or of diligent pursuit, and the blame on counsel was characterised as unsupported. On arguability, the record omitted the High Court's judgment or ruling, making it impossible to assess the intended appeal's chances of success. The Court accepted that the respondent, who also intended to appeal, would suffer no prejudice. Weighing all factors, the Court declined to exercise its discretion, dismissed the motion with costs to the respondent, and made no finding disturbing the decision of the High Court. The respondent, though served, did not attend the hearing.

Key legal issues

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01

Whether the delay of approximately four months in lodging the Notice of Appeal was sufficiently explained

Holding

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

Reasoning

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.

p. 2
02

Whether the intended appeal had a chance of success

Holding

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

Reasoning

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.

p. 2
03

Whether the respondent would suffer prejudice if the extension were granted

Holding

The applicant conceded, and the Court agreed, that the respondent intended to appeal against the same decision and would therefore suffer no prejudice

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 20th May 2019 be and is hereby dismissed with costs to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)
  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction Actsection 3B
  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 42(2)

Cases cited (2)

  • Leo Sila Mutiso vs Rose Hellen Wangari Mwangi
    Civil Application No. Nai 251 of 1997
  • Trade Bank Ltd (In liquidation) vs L.Z. Engineering Construction Ltd & Another
    Civil Appl. No. NAI. 282/98
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.