Mary Akinyi Okoth & another v Simon Harold Shiels
The bottom line
#Kenya's Court of Appeal let two siblings appeal a succession ruling a year late, ruling their delay was excusable because they had been pursuing other court steps.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of about one year in filing the notice of appeal was excusable
The delay was excusable and not inordinate, given the intervening actions taken by the applicants and their advocates after the ruling.
The single judge applied the Leo Sila Mutiso principles. The applicants explained the delay by the time taken to engage a new advocate and applications filed in the High Court seeking stay of execution of the impugned ruling. These facts were not seriously disputed by the respondent. The court declined to speculate on the prudence of appealing the ruling rather than the earlier judgment.
Whether the intended appeal had plausible grounds
The applicants needed only to demonstrate plausible grounds of appeal, not their merit, and the draft memorandum raising issues of marriage and dependency satisfied this threshold.
On the third Leo Sila Mutiso factor, the court held that at this stage it need only be persuaded that plausible grounds exist. The applicants, biological children of the deceased, faulted the trial judge for finding the respondent legally married to the deceased and for recognising step-children, nieces and nephews as dependants; these grounds required further argument and consideration.
Legal principles established
#- The decision to extend time for appealing is discretionary, guided by the length of and reason for delay, chances of the appeal succeeding, and prejudice to the respondent.
Court orders
#- 1.Leave granted to the applicants to file and serve a notice of appeal against the ruling delivered on July 15, 2021 in Malindi High Court Succession Cause No 9 of 2018 within thirty days of the date of the ruling
- 2.No order as to the costs of the application
- On appeal from
- High Court of Kenya at Malindi
- Malindi High Court Succession Cause No 9 of 2018 (In the Matter of the Estate of Jecinter Njoki Okoth (Deceased))
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time jurisdiction), sitting as a single judge under the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Akinyi Okoth & another v Simon Harold Shiels", Case Analysis (2022). Civil Application E013 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1408/eng@2022-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.