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Court of AppealDismissedKisumu Civil Application No. 10 of 2020· [2020] KECA 242 (KLR)

Erasto Odhiambo Muga v Ester Ajwang Nyangure & 2 others [2020] KECA 242 (KLR)

Court of Appeal
23 October 2020
William OukoW. OukoWKW. KaranjaHOHannah Okwengu
1,002 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a succession appeal application because it was filed through the wrong procedure and four years too late, without prior leave.

What this practically means

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Executive summary

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The applicant, Erasto Odhiambo Muga, moved the Court of Appeal by Notice of Motion dated 25th January, 2020 seeking leave to appeal against a ruling of D.S. Majanja, J. delivered on 30th June, 2016 in Kisumu H.C. Succession Cause No. 796 of 2010, and seeking that a Notice of Appeal filed on 8th July, 2016 be deemed duly filed and served. The application was brought under Section 7 of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules. The Court held that Section 7 has no applicability in the Court of Appeal, and that Rule 4 confers jurisdiction only to extend time, not to grant leave where leave is a prerequisite for filing an appeal. The Court found that the second prayer, for extension of time to file the Notice of Appeal, was a single judge matter under Rule 53(1) and not properly before a full bench, reiterating its disapproval of omnibus applications mixing single judge and full court reliefs. On the leave prayer, the Court noted that under Rule 39 leave had to be sought within 14 days of the decision; the applicant came four years late without first seeking an extension of time to apply for leave. Absent a competent application, the Court dismissed the entire application with no order as to costs. The Court of Appeal's decision in Rhoda Wairimu Karanja was applied to confirm that appeals from succession matters lie only with leave.

Key legal issues

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01

Whether a full bench can entertain an omnibus application combining leave to appeal and extension of time

Holding

The second prayer for deeming the notice of appeal filed was improperly before the full bench; extension of time under Rule 4 is a single judge application in the first instance.

Reasoning

The Court adopted its earlier decision in Riccardo Fanelli deploring the practice of seeking in one application reliefs reserved for a single judge and reliefs reserved for the full court. Such applications are to be heard first by a single judge under Rule 53(1), with the full court seized only on reference under Rule 55.

p. 2
02

Whether the applicant's application for leave to appeal was competent

Holding

The application was incompetent because the applicant should have first moved under Rule 4 to extend time for applying for leave, leave being a prerequisite in succession matters under Rule 39.

Reasoning

Under Rule 39, leave had to be sought within 14 days of the decision. The applicant came four years later without first seeking extension of time to apply for leave. Only after extension is granted can the merits of the leave application be considered. With no competent application, the Court dismissed it.

p. 2

Legal principles established

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  • Rule 4 of the Court of Appeal Rules confers jurisdiction to extend time only, and does not give the Court jurisdiction to grant leave to appeal where leave is a prerequisite.
  • Applications for extension of time under Rule 4 are to be heard and determined in the first instance by a single judge, coming to the full court only by way of reference.
  • Under the Law of Succession Act there is no automatic right of appeal to the Court of Appeal; leave of the High Court or, if refused, of the Court of Appeal is required, and leave is granted where prima facie grounds merit serious judicial consideration.

Court orders

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  1. 1.The entire application is dismissed with no order as to costs

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 7
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 39
  • Court of Appeal RulesRule 53(1)
  • Court of Appeal RulesRule 55
  • Law of Succession Act

Cases cited (4)

  • Riccardo Fanelli & 2 Others vs. Frigrieri Graziano (2015) eKLR
    (2015) eKLR
  • Christopher Iddi Moto & 15 Others v. Chiriba Nyambu Barua & Another, CA No. 43 of 2014 (UR 38/14)
    CA No. 43 of 2014 (UR 38/14)
  • Feisal Mohamed Ali v. Republic, Cr Ap. No. 2 of 2015 (UR1/15)
    Cr Ap. No. 2 of 2015 (UR1/15)
  • Rhoda Wairimu Karanja and John Kioi Karanja vs. Mary Wangui Karanja and Salome Njeri Karanja, [2014] eKLR
    [2014] eKLR
On appeal from
High Court of Kenya at Kisumu
H.C. Succ. Cause No. 796 of 2010
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act and Rule 4 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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Later judgments citing this (1)

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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, "Erasto Odhiambo Muga v Ester Ajwang Nyangure & 2 others [2020] KECA 242 (KLR)", Case Analysis (2020). Kisumu Civil Application No. 10 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/242/eng@2020-10-23

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