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Court of AppealPartially AllowedCivil Appeal (Application) E259 of 2020· [2022] KECA 399 (KLR)
Gathu v Gathu
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·~4 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This is a single-judge ruling of the Court of Appeal at Nairobi by Kantai, JA, on a motion under rules 4, 41 and 99(1 & 3) of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act. The applicant, Julia Wanjiru Gathu, sought substitution of the name of Teresiah Nyambura Gathu (deceased, 22nd December 2017) with her own, extension of time, and revival of an abated appeal against a ruling of Musyoka, J. delivered 31st January 2014 in High Court Succession Cause No. 1094 of 2007, a succession dispute over Title No. Limuru/Bibiioni/1221. The respondent, Miriam Gathoni Gathu, opposed, asserting she was declared sole beneficiary in 2012, that the only asset was now registered in her name, and that the applicant lacked locus and there was no proper appeal. The court applied the well-settled Fakir Mohamed principles for extension of time under Rule 4, noting the unfettered discretion and the non-exhaustive list of relevant factors. Finding that the Notice of Appeal dated 5th February 2014 was filed on time but not served as required by the former advocates, and that the applicant and her siblings faced disinheritance of land they had occupied for over 50 years, the judge extended time for service of the Notice of Appeal out of time, directed service within 14 days and filing of the Record of Appeal within 30 days, with costs of the Motion in the appeal. The prayers for substitution and revival were not addressed in the orders.
Key legal issues
#01
Extension of time for service of Notice of Appeal
Holding
Where a Notice of Appeal was filed on time but not served as required by the Court of Appeal Rules, the court will exercise its discretion to extend time for service.
Reasoning
The court applied the settled Fakir Mohamed principles: delay, reason for delay, chances of success, prejudice to respondent and other relevant factors. The Notice of Appeal was filed on time (5th February 2014 after the 3rd February 2014 ruling); the failure was one of service by former advocates. Given the applicant and siblings faced potential disinheritance of land on which they had lived over 50 years, the discretion was exercised in their favour.
p. 2
Legal principles established
#- The Rule 4 discretion is unfettered and the court may consider any relevant factors, including period and reason for delay, chances of appeal succeeding, and prejudice to the respondent.
Court orders
#- 1.Extension of time granted to serve Notice of Appeal out of time
- 2.Applicant to serve Notice of Appeal upon the respondent within 14 days
- 3.Record of Appeal to be filed within 30 days thereafter
- 4.Costs of the Motion to be in the appeal
- On appeal from
- High Court of Kenya at Nairobi
- HC. Succession Cause No. 1094 of 2007
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rules 4, 41, 99(1 & 3) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathu v Gathu", Case Analysis (2022). Civil Appeal (Application) E259 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/399/eng@2022-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.