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Court of AppealAllowedNot stated in the judgment (Notice of Motion under Rule 4 of the Court of Appeal Rules)· [2020] KECA 353 (KLR)

Patricia Hadija Wagaki v Joseph Muriithi Mathinji [2020] KECA 353 (KLR)

Court of Appeal of Kenya
7 August 2020
FSF. Sichalet
588 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal gave a family 30 more days to file an appeal, confirming that a party's death reasonably explains filing delays.

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 Nairobi delivered on 7th August 2020 on a Notice of Motion by Patricia Hadija Wagaki under Rule 4 of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act, seeking extension of time to file an appeal against the judgment of 19th April 2018 in Nanyuki High Court Succession Cause No. 64 of 2016. The applicant was the substituted party in the succession cause: the original petitioner, Miriam Wangui John, had timeously filed a notice of appeal and applied for certified proceedings, but died on 16th September 2018 before the proceedings became ready. The applicant obtained a grant of letters of administration ad litem in December 2018 and was substituted by consent in January 2019. The respondent did not file an affidavit in response. The court, sitting without counsel owing to the Covid-19 pandemic, restated that Rule 4 gives a discretion to extend time 'on such terms as it thinks just' but does not enumerate factors, and that courts have devised principles requiring a satisfactory explanation for delay. Relying on its own decision in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, it held that the death of the petitioner was a plausible explanation for the delay. The motion was allowed: time was extended by thirty days from the date of the ruling, in view of the pandemic, and each party was ordered to bear their own costs. This ruling binds no lower court on the merits; it disposes only of the interlocutory extension application, and the intended appeal remains to be filed and determined.

Key legal issues

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01

Whether the delay in lodging the record of appeal was satisfactorily explained to warrant extension of time under Rule 4

Holding

The delay was reasonably explained: the death of the deceased petitioner after she had lodged a notice of appeal and applied for proceedings caused the delay, and the applicant, as personal representative substituted into the cause, was entitled to have time extended.

Reasoning

The court restated the Rule 4 principles, noting the rule itself does not list factors and that the decision must be 'just' in the circumstances of each case. Relying on Chemaringo v Kibet, it held that a plausible and satisfactory explanation unlocks discretion. The death of the petitioner after she had timeously filed a notice of appeal and requested proceedings, and the time taken to obtain a grant ad litem and effect substitution, amounted to a plausible explanation. Covid-19 circumstances also informed the length of the extension.

p. 2

Legal principles established

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  • Rule 4 confers a discretion on the Court to extend time on such terms as it thinks just, and while the rule does not enumerate the factors, courts have devised principles requiring any delay to be satisfactorily explained
  • A plausible and satisfactory explanation for delay is the key that unlocks the court's discretionary favour in an extension-of-time application

Court orders

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  1. 1.The motion is allowed
  2. 2.Time is extended to lodge the record of appeal against the judgment of 19th April, 2018 in High Court Case No. 64 of 2016 by thirty (30) days from the date of the ruling
  3. 3.Each party to bear his/her own costs
On appeal from
High Court of Kenya at Nanyuki
Succession Cause No. 64 of 2016
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act

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, "Patricia Hadija Wagaki v Joseph Muriithi Mathinji [2020] KECA 353 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of Motion under Rule 4 of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/353/eng@2020-08-07

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