Gathuku Kamau Mwangi v Harrison Gathuku Muhia & another [2020] KECA 670 (KLR)
The bottom line
#The Court of Appeal refused to let a late appeal proceed because the 14-month delay was not properly explained or documented.
What this practically means
#Executive summary
#Key legal issues
#Whether the Certificate of delay explained the period before 22nd July 2019
No — absent a written request for proceedings served on the respondents as required by rule 82(2), the applicant cannot invoke the proviso to rule 82(1) to exclude that period.
The proviso to rule 82(1) excludes from the computation of time only such time as the registrar certifies was required for preparation of proceedings, and only where the request was made in writing within thirty days and served on the respondents. The record showed no such request and the respondents denied being served, so no explanation existed for the delay from judgment to the certificate date.
Whether blame assigned to the applicant's former advocates explained the remaining delay
No — without a letter of instruction or correspondence from the firm acknowledging responsibility, the explanation was implausible and unsatisfactory.
The applicant alleged that the firm of Otieno Okiabera Advocates failed to file the appeal after being instructed, but produced no letter of instruction, no letter from the firm confirming engagement, and no acknowledgment that the delay was the firm's fault. Counsel for the respondents pointed out the absence of any affidavit or correspondence from the firm. Unsupported assertion could not found a sufficient explanation.
Whether the intended appeal, based on a challenge to the application of Agikuyu customary law, had chances of success
The court doubted that the learned judge could be faulted for applying Agikuyu customary law, given section 2(1) of the Law of Succession Act and the fact that the deceased died before the Act's enactment in 1981.
The judge below had held that because the deceased died in 1964, before the Law of Succession Act was enacted in 1981, the substantive provisions of the Act did not apply and the estate fell to be distributed under Kikuyu customary law. The court expressed the view that, if the Act expressly ousts its substantive provisions for such estates and substitutes customary law, the judge could hardly be faulted, suggesting the appeal lacked prospects of success.
Legal principles established
#- Under rule 4 of the Court of Appeal Rules, the Court has unfettered but judicious discretion to extend time, guided by the length of the delay, reasons for the delay, chances of success of the appeal, and prejudice to the respondent.
- To benefit from the proviso to rule 82(1) excluding time taken to prepare certified proceedings, the appellant must produce a written request for proceedings served on the respondents.
Court orders
#- 1.The Notice of Motion dated 15th November 2019 is dismissed
- 2.Each party to bear their own costs
- On appeal from
- High Court of Kenya (Environment and Land Court, Succession Court)
- Succession Cause — Estate of Gathuku Mwangi Muchai (deceased)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathuku Kamau Mwangi v Harrison Gathuku Muhia & another [2020] KECA 670 (KLR)", Case Analysis (2020). Civil Application (Nai.) — Notice of Motion dated 15th November 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/670/eng@2020-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.