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Court of AppealDismissedNotice of Motion dated 22nd March 2019 (Civil Application)· [2021] KECA 50 (KLR)

Githae v Githae (Civil Application 36A of 2019) [2021] KECA 50 (KLR)

Court of Appeal of Kenya
23 September 2021
1,163 words in judgment
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The bottom line

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Kenya's Court of Appeal refused a family member nearly a year's extension to appeal a revoked estate grant, blaming him for unexplained delay.

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 by A. K. Murgor, JA on 23rd September 2021, on a Notice of Motion dated 22nd March 2019 by Albert Njeru Githae seeking leave to file and serve a Record of Appeal out of time against a High Court ruling of 12th April 2018 revoking a grant of letters of administration ad litem over the Estate of the Late Eva Wangui Githae. The applicant attributed a 253-day (in fact about 337-day) delay to the court registry's failure to supply certified copies of the ruling and proceedings; the respondent countered that a certified copy had been available since 27th April 2018 and that the applicant had neglected to act promptly. Applying the settled Rule 4 principles from Leo Sila Mutiso v Rose Hellen Wangari Mwangi - length of delay, reason for delay, arguability of the appeal and prejudice - the Court found the delay unexplained, since the applicant failed to show who caused the delay in supplying a ruling that was at all times available. On arguability, the trial judge had revoked the grant for non-compliance with rule 26 of the Probate and Administration Rules, making the appeal unlikely to succeed, and continued delay would prejudice the whole family in settling the estate. The motion was dismissed with no orders as to costs, the parties being members of one family.

Key legal issues

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01

Length and explanation of delay

Holding

The delay of about 337 days was not adequately explained. Where the ruling was available to the parties, the applicant had to show who caused the delay in supplying it, and no material (such as a letter from the registry taking responsibility) was provided.

Reasoning

The Court weighed the applicant's claim that certified copies were only supplied in February 2019 against the respondent's copy certified on 27th April 2018. Since the same ruling was at all times available, the burden lay on the applicant to explain the delay in obtaining it; nothing before the Court explained the almost one-year delay, nor the delay in obtaining the order.

p. 2
02

Chances of success of the intended appeal

Holding

The trial court revoked the grant of letters of administration ad litem for non-compliance with rule 26 of the Probate and Administration Rules; if that non-compliance occurred, the appeal would likely fail.

Reasoning

The trial judge revoked the grant because the applicant obtained letters of administration ad litem without notifying all persons beneficially entitled as required by rule 26 of the Probate and Administration Rules. The Court held that if the applicant indeed failed to comply, there was every likelihood the intended appeal would not succeed.

p. 3
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Prejudice to the respondent

Holding

Continued delay in finalising settlement of the deceased's estate would prejudice all members of the family.

Reasoning

The Court found that prolonging the matter through an extension of time would delay final settlement of the deceased's estate, which is prejudicial to all family members, an additional reason to refuse the extension.

p. 3

Legal principles established

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  • Under Rule 4 of the Court of Appeal Rules the Court has an unfettered but judicious discretion on extension of time, guided by the length of the delay, the reason for the delay, the chances of success of the appeal and prejudice to the respondent.

Court orders

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  1. 1.The Notice of Motion dated 22nd March 2019 is dismissed
  2. 2.Leave to file and serve the Record of Appeal out of time is declined
  3. 3.No orders as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Probate and Administration Rulesrule 26

Cases cited (1)

  • Leo Sila Mutiso vs Rose Hellen Wangari Mwangi
    Civil Application No. Nai 251 of 1997
On appeal from
High Court
null
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

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, "Githae v Githae (Civil Application 36A of 2019) [2021] KECA 50 (KLR)", Case Analysis (2021). Notice of Motion dated 22nd March 2019 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/50/eng@2021-09-23

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