Kibiego Tuwei v Mary Chesang & another [2019] KECA 652 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Remedy following abatement of an appeal
The correct course is an application to revive the abated appeal, not a fresh appeal.
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.
Discretion on extension of time
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.
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.
Legal principles established
#- 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
#- 1.Application for extension of time dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.