In re Estate of Joseph Muoki Ndivo (Deceased) [2020] KECA 878 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time to appeal because the applicants simply blamed their advocates without evidence they followed up their own case.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the notice of appeal was excusably explained by the mistake of the applicants' previous advocates
The application was dismissed because no material was placed before the Court showing the applicants followed up the filing of the notice of appeal; the conduct disclosed inaction rather than an excusable mistake of counsel.
The Rule 4 discretion is unfettered but must be exercised judicially on a sound factual and legal basis. The factors include length of delay, reason for delay, arguability of the appeal and prejudice. Although the appeal was arguably arguable, the applicants offered no evidence that they pursued their advocates. Authorities establish that inaction by an advocate is not an excusable mistake and parties must follow up their own cases.
Whether the intended appeal was arguable
The draft memorandum of appeal raised arguable issues, including the interpretation of Section 66 of the Law of Succession Act on preference in grants of letters of administration intestate, but arguability alone did not secure the extension.
An arguable appeal need not have an overwhelming probability of success, but the court must balance the right of appeal against the respondent's right to enjoy the fruits of judgment. Since the delay was unexplained, the balancing favoured the respondent, who had already obtained letters of administration and faced possible dispossession if time were extended.
Legal principles established
#- A plausible and satisfactory explanation for delay is the key to the exercise of the Rule 4 discretion; any delay must be satisfactorily explained.
- It is not enough for a litigant to blame advocates; parties must show interest in and follow up their cases even when represented.
- On an extension-of-time application, a single Judge should not make definitive pronouncements on the success of the intended appeal.
Court orders
#- 1.Dismissal of the Notice of Motion dated 31st July 2019
- 2.Each party to bear their own costs
- On appeal from
- High Court
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of Joseph Muoki Ndivo (Deceased) [2020] KECA 878 (KLR)", Case Analysis (2020). Civil Application (Nai.) — Notice of Motion dated 31st July, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/878/eng@2020-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.