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Court of AppealDismissedCivil Application E151 of 2021· [2022] KECA 372 (KLR)

Mirikwa & 3 others v Mirikwa & 2 others

Court of Appeal
18 February 2022
PKP. O. Kiage
831 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to forgive a 14-day late appeal because the family gave no honest, credible reason for the 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 Kisumu (Kiage, JA) on a Motion dated 1 November 2021 seeking leave to appeal out of time by approximately 14 days under Rule 4 of the Court of Appeal Rules. The application arose from the judgment and decree of the High Court at Kakamega (Musyoka, J) dated 18 June 2021 in Succession Cause No. 294 of 2004 concerning the estate of Mirikwa Werimo. The applicants, who were the appellants before the Court of Appeal, blamed the delay on lack of notice of the judgment, the speed with which the grant was confirmed, and the COVID-19 pandemic, which they said prevented access to the court file. The respondents, through a replying affidavit deponed by Helen Auma Mirikwa (substituted for the deceased 2nd respondent), countered that the application was an abuse of process, that the matter had been heard inter partes so no notice of entry of judgment was needed, and that the applicants knew the judgment date. Applying the settled principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the judge held that a plausible and satisfactory explanation is the key that unlocks the court's discretionary favour. He found the allegations against the court unconscionable and reckless, held that e-filing and e-service directions issued in April 2020 were well established by June 2021, and concluded that the delay was inordinate and inexcusable. The application was dismissed with costs.

Key legal issues

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01

Whether the delay of approximately 14 days beyond the limitation period was excusable

Holding

The delay was inordinate and inexcusable; the applicants' explanations blaming the court and the COVID-19 pandemic were rejected as exaggerated and lacking candour

Reasoning

The applicants alleged judgment was delivered without notice and that the grant was confirmed with undue speed, but the respondents showed the applicants knew the judgment date. The court also found that by June 2021 e-filing and e-service directions issued in April 2020 were well established, so the pandemic could not excuse failure to access the file electronically.

p. 2
02

Whether the COVID-19 pandemic justified the failure to file the appeal in time

Holding

The pandemic excuse was unpersuasive because e-filing and e-service systems were well established by the judgment date

Reasoning

The Chief Justice's practice directions of 4 April 2020 and the Court of Appeal's complementary directions of 21 April 2020 had established e-filing and e-service. By 18 June 2021 the applicants could access the file and documents electronically, so reliance on the pandemic failed.

p. 2

Legal principles established

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  • A plausible and satisfactory explanation for delay is the key that unlocks the Court's discretionary favour in extension-of-time applications
  • The decision whether or not to extend time for appealing is discretionary, taking into account length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent

Court orders

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  1. 1.Prayer to extend time to appeal out of time declined
  2. 2.Application dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (2)

  • Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi
    (1999) 2 EA 231

    Principles for extension of time: length of delay, reason, chances of appeal succeeding, prejudice to respondent

  • Andrew Kiplagat Chemaringo -vs- Paul Kipkorir Kibet
    [2018] eKLR

    A plausible and satisfactory explanation is the key that unlocks the Court's discretionary favour

On appeal from
High Court at Kakamega
Succession Cause No. 294 of 2004
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time jurisdiction)

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, "Mirikwa & 3 others v Mirikwa & 2 others", Case Analysis (2022). Civil Application E151 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/372/eng@2022-02-18

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