Githae v Githae (Civil Application 36A of 2019) [2021] KECA 50 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Length and explanation of delay
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.
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.
Chances of success of the intended appeal
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.
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.
Prejudice to the respondent
Continued delay in finalising settlement of the deceased's estate would prejudice all members of the family.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 22nd March 2019 is dismissed
- 2.Leave to file and serve the Record of Appeal out of time is declined
- 3.No orders as to costs
- On appeal from
- High Court
- null
- 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, "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.