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Court of AppealDismissedEldoret Court of Appeal Civil Application (rule 4) arising from Civil Appeal No. 262 of 2007· [2019] KECA 652 (KLR)

Kibiego Tuwei v Mary Chesang & another [2019] KECA 652 (KLR)

Court of Appeal of Kenya
6 June 2019
1,060 words in judgment
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The bottom line

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The Court of Appeal refused to revive a 13-year-old succession dispute through a fresh appeal, ruling that an abated appeal must be revived, not restarted.

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 Eldoret (P. O. Kiage, JA) delivered on 6 June 2019 on a motion under rule 4 of the Court of Appeal Rules. The applicant, Kibiego Tuwei, administrator of the estate of Taborise Chesang Keter, sought extension of time to file a fresh appeal out of time against a High Court judgment of Lady Justice Jeanne Gacheche delivered on 9 May 2006 in a succession dispute. An earlier appeal, Civil Appeal No. 262 of 2007, filed by the applicant's mother, abated on her death on 26 September 2011 because no substitution application was made within a year; a prior application for enlargement of time and substitution had been struck out by Odek, JA on 2 October 2018. The court held that once an appeal abates, the administrator's proper remedy is to apply to revive the abated appeal, not to file a fresh, independent appeal; on that ground alone the application had to fail. In the alternative, exercising the established discretion on extension of time, the court found the delay of thirteen years since judgment and nearly eight years since the appellant's death long and inordinate, unexplained by any plausible reason, and prejudicial to the respondents since litigation must come to an end. The motion was dismissed with costs.

Key legal issues

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01

Remedy following abatement of an appeal

Holding

The correct course is an application to revive the abated appeal, not a fresh appeal.

Reasoning

The appeal by the applicant's mother abated on her death because no substitution was made within one year. As her administrator, the applicant's remedy lay in revival of that appeal under the Court of Appeal Rules. Treating the abated appeal as non-existent and seeking a fresh appeal is impermissible, and on that ground alone the application fails.

p. 2
02

Discretion on extension of time

Holding

Extension refused: the delay of thirteen years since judgment and nearly eight since the appellant's death was long and inordinate, with no plausible reason, and prejudice is established by the lapse of time itself.

Reasoning

Even assuming the application were competent, the court weighs the length of delay, reasons for it, chances of success and prejudice. Thirteen years had passed since the High Court judgment; the deceased died in 2011. Family disagreement over letters of administration is not a reason to expose respondents to fresh litigation; the passage of time is prejudice enough because litigation must end.

p. 2

Legal principles established

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  • Where an appeal has abated for want of substitution within a year, an administrator of the deceased appellant's estate must apply to revive the abated appeal and cannot file a fresh, independent appeal.
  • The established considerations on an application to enlarge time are the length of the delay, the reasons for the delay, possibly the likelihood of the appeal succeeding, and the prejudice to the respondent.

Court orders

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  1. 1.Application for extension of time dismissed with costs

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Civil Procedure Actvarious (cited in the motion but ignored by the court)
  • Civil Procedure Rulesvarious (cited in the motion but ignored by the court)
On appeal from
High Court
Succession dispute judgment of Lady Justice Jeanne Gacheche
Jurisdiction invoked
rule 4 of the Court of Appeal Rules (single Judge, in-chambers)

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, "Kibiego Tuwei v Mary Chesang & another [2019] KECA 652 (KLR)", Case Analysis (2019). Eldoret Court of Appeal Civil Application (rule 4) arising from Civil Appeal No. 262 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/652/eng@2019-06-06

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