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Court of AppealDismissedCivil Application E025 of 2021· [2022] KECA 971 (KLR)

Marete v Marete & another

Court of Appeal
26 August 2022
KLDr. K. I. Laibuta
2,380 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive a two-year-delayed succession appeal, confirming that even a strong appeal fails if you cannot explain 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 Nyeri (Laibuta, JA) on a Notice of Motion under Rule 4 of the Court of Appeal Rules seeking extension of time to file and serve a record of appeal out of time, together with stay, against the judgment of Gikonyo, J. in Meru Succession Cause No. 3 of 1978 delivered on February 12, 2019, which had distributed the estate of M'Marete Kiunga equally among his children. The applicant, an elderly and infirm man, relied on his ill health, arguing his notice of appeal had been lodged in time and that the intended appeal was arguable, raising grounds including the retrospective application of the Law of Succession Act and revocation of a 1978 grant without application. The respondents opposed, citing inordinate delay of over two years, execution of the judgment, and distribution of the estate. Applying the settled Rule 4 principles from Leo Sila Mutiso and Fakir Mohammed, the court accepted the appeal was arguably arguable but held arguability was only the first step. The delay of two years and one month was inordinate and unexplained, particularly the advocate's failure to lodge the appeal after obtaining certified copies. The judgment had been executed and the estate distributed, so the respondents would suffer undue prejudice. The application, described as an afterthought by an indolent litigant, was dismissed with costs to the respondents.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The draft memorandum of appeal disclosed an arguable appeal with a possibility of success, but this was merely the first step

Reasoning

The court examined the nine grounds in the draft memorandum, including retrospective application of the Law of Succession Act and revocation of a grant without application, and found they disclosed a reasonable arguability, while noting 'possibility' admits the appeal might fail.

p. 3
02

Whether the delay of over two years was excusable

Holding

The delay was inordinate and inexcusable; ill health did not explain counsel's failure to lodge the appeal after obtaining certified copies

Reasoning

The application was filed over two years after judgment. The applicant blamed infirmity but did not explain his advocate's inaction, and no affidavit was filed by the advocate. Unexplained indolence of that magnitude cannot be condoned by the court.

p. 4
03

Whether the respondents would be prejudiced

Holding

Extension would prejudice the respondents, who had embraced the judgment, executed it and distributed the estate

Reasoning

The court found the application an afterthought; the judgment had been executed and the estate distributed among beneficiaries, so granting extension would unfairly deprive respondents of the fruits of the judgment and revive a dead dispute.

Legal principles established

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  • Arguability alone does not justify extension of time; the applicant must also satisfactorily explain the delay and show absence of prejudice
  • A plausible and satisfactory explanation for delay is the key that unlocks the court's discretionary favour under Rule 4
  • Extension of time under Rule 4 arises only after sufficient reason for extension is established; other considerations follow

Court orders

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  1. 1.The applicant's Notice of Motion is dismissed with costs to the respondents.

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 84(1)
  • Law of Succession Actsection 2
  • Constitution of Kenya, 2010Article 267
  • Civil Procedure Rules, 2010
  • Land Registration Act, 2012

Cases cited (7)

  • Leo Sila Mutiso v Helen Wangari Mwangi
    [1999] 2 EA p231

    Principles for extension of time under Rule 4: length and reason for delay, arguability, prejudice

  • Fakir Mohammed v Joseph Mugambi and two others
    [2005] eKLR

    Rule 4 discretion is unfettered; relevant factors are not exhaustive

  • Joseph Wanjohi Njau v Benson Maina Kabau
    Civil Application No. 97 of 2012 (Unreported)

    An arguable appeal need not necessarily succeed but ought to be argued fully

  • Muchungi Kiragu v James Muchungi Kiragu and another
    [1998] eKLR

    Extension granted on arguability unless action inexcusable and opponent prejudiced

  • Cecilia Wanja Waweru v Jackson Wainaina Muiruri & another
    [2014] eKLR

    Indolence without reasonable excuse prejudices the respondent by delaying the fruits of judgment

  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    [2018] eKLR

    No minimum or maximum period of delay; satisfactory explanation is key

  • Abdul Aziz Ngoma v Mungai Mathayo
    [1976] Kenya LR p.61-2

    Discretion under rule 4 arises only after sufficient reason is established

On appeal from
High Court of Kenya at Meru
Succession Cause No. 3 of 1978
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time discretion)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Marete v Marete & another", Case Analysis (2022). Civil Application E025 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/971/eng@2022-08-26

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