In re Estate of Joshua Mbira Githehu (Deceased) - Josiah Wanene Nduta v Wilfred Mukoma Mbira & 5 others
The bottom line
#Kenya's Court of Appeal refused to extend time to appeal because the applicant had no valid Notice of Appeal on record and gave vague Covid-19 explanations.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted extension of time to lodge a Memorandum and Record of Appeal out of time under Rule 4
- 2.Whether the delay of about 11 months was explained
- 3.Whether a valid Notice of Appeal exists on record to support the extension sought
Key legal issues
#Exercise of discretion under Rule 4 of the Court of Appeal Rules
The application failed because the delay of about 11 months was inordinate and unexplained, and no valid Notice of Appeal was on record
The court applied the Fakir Mohamed principles: length of delay, cause of delay, possibility of appeal succeeding and prejudice. The delay from the 8th April 2020 ruling to the 10th March 2021 motion was inordinate; the Covid-19 explanation was vague, with no dates given for closure or receipt of the ruling. Critically, the Notice of Appeal was itself filed late and it was unclear it was ever lodged, so there was no valid Notice of Appeal to support the extension sought.
Necessity of a valid Notice of Appeal
A Memorandum and Record of Appeal cannot be lodged out of time where no proper Notice of Appeal exists
The respondents argued, and the single Judge accepted, that the prayers sought extension only for the Memorandum and Record of Appeal with no mention of the Notice of Appeal. The Notice of Appeal was dated some 7 months after the ruling and its filing was not evident from the record, leaving no valid Notice of Appeal on record and rendering the extension futile.
Legal principles established
#- Extension of time cannot be granted to lodge a Memorandum and Record of Appeal where there is no valid Notice of Appeal on record
- The Rule 4 discretion is wide but must be exercised judiciously, considering length and cause of delay, possibility of appeal succeeding and prejudice
Court orders
#- 1.The applicant's motion dated 10th March 2021 is dismissed
- 2.No order as to costs, this being a succession matter
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- High Court Succession Cause No. 131 of 1984
- Jurisdiction invoked
- Sections 3, 3A, 3B of the Appellate Jurisdiction Act and Rules 4, 82 and 83 of the Court of Appeal Rules
Relief refused
#Extension of time to lodge Memorandum and Record of Appeal
Inordinate unexplained delay and no valid Notice of Appeal on record
Costs
No order as to costs, this being a succession matter
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The principles upon which this Court exercises its discretion under Rule 4 are firmly settled.
The Court cannot therefore grant extension of time to lodge Memorandum and Record of Appeal when there is no valid Notice of Appeal on record.
Accordingly, the applicant’s motion dated 10th March 2021, is without merit and the same is hereby dismissed with no order as to costs this being a succession matter.
Issues in the judgment
#Conflicting dates for the Notice of Appeal within the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of Joshua Mbira Githehu (Deceased) - Josiah Wanene Nduta v Wilfred Mukoma Mbira & 5 others", Case Analysis (2022). Civil Application E079 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1141/eng@2022-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.