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Court of AppealDismissedCivil Application No. E010 of 2023 (as inferred from the rule 4 application dated December 8, 2022)· [2023] KECA 223 (KLR)

Munikah (Appealing as one of the Personal Representatives and the Executor/Administrator of the Will of the Estate of Alfred Josse Nakaya) v Wangai & another (Civil Application E472 of 2022) [2023] KECA 223 (KLR)

Court of Appeal
3 March 2023
1,748 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because the applicant's claimed illness appeared only in submissions, not sworn evidence.

What this practically means

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Executive summary

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This is a single-judge decision of the Court of Appeal at Nairobi dismissing an application dated December 8, 2022 under rule 4 of the Court of Appeal Rules, 2022 seeking extension of time of 14 days to file a notice of appeal and 60 days to file a record of appeal against a ruling delivered on March 28, 2022 in ELC No. 258 of 2020. The applicant, a personal representative of the estate of Alfred Josse Nakaya, sought to appeal against the striking out of a suit concerning alleged fraudulent transfer of the suit property, the 2nd respondent having disowned the instructions to institute the suit. The sole issue was whether the application should be allowed. Applying the settled rule 4 principles from Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees and Fakir Mohamed v Joseph Mugambi, the court found the approximately eight-month delay unexplained. The applicant's claim of hospitalisation from March to September 2022 was raised only in submissions, not in the application or supporting affidavit; the court reiterated, citing Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, that submissions cannot take the place of evidence. The purported medical annexure was absent, and the annexure SMM2 to the affidavit was a copy of the title. Further, the three-month delay after the alleged indisposition was not explained, and no answers were given as to whether the applicant was informed of the ruling by his advocate, who was present at delivery. Holding that the first ground - satisfactory explanation of the delay - had failed, the court dismissed the application with costs to the 1st respondent. The decision below was not disturbed; the intended appeal was not filed. No new substantive proposition beyond the rule 4 jurisprudence was created.

Key legal issues

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01

Whether the delay of approximately eight months in filing the notice of appeal was satisfactorily explained

Holding

The application fails because the delay was not satisfactorily explained; sickness was raised only in submissions, not evidenced by affidavit, and the post-illness period was unexplained

Reasoning

The court applied the settled rule 4 principles from Muringa and Fakir Mohamed, requiring explanation of the delay, prejudice, conduct and arguability. The alleged hospitalisation from March to September 2022 appeared only in submissions and the annexed medical note was absent; the annexure SMM2 to the affidavit was instead a copy of the title. The applicant did not explain why his advocate, present at the ruling, took no steps, nor the further three-month delay from September to December 2022.

p. 4
02

Whether facts asserted for the first time in submissions can support an application

Holding

No - submissions do not constitute evidence unless expressly adopted as such

Reasoning

Relying on Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, the court held that the applicant's claim of indisposition, raised only in submissions, could not stand as evidence. Evidence must be placed before the court by affidavit; a court should not make guesses on unsubstantiated assertions, and a party owes the court a convincing explanation.

p. 3

Legal principles established

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  • Submissions cannot take the place of evidence and cannot be used to introduce facts not pleaded in affidavits unless expressly adopted as such
  • An applicant under rule 4 must satisfactorily explain the length of and reason for the delay as the first ground; failure on that ground is fatal to the application irrespective of other factors
  • A party asserting sickness as an excuse for delay owes the court a convincing, evidenced explanation of the indisposition and its effect on the ability to instruct counsel

Court orders

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  1. 1.The application dated December 8, 2022 is dismissed
  2. 2.Costs of the application to the 1st respondent

Authorities

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Legislation

  • Court of Appeal Rules, 2022rule 4
  • Court of Appeal Rules, 2022rule 77(2)

Cases cited (8)

  • Ruth Damaris Wambui Mbiyu & 3 others v Moses Lesiamon Ole Mpoe & 4 others
    [2005] eKLR
  • Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees
    Civil Application No 190 of 2019
  • Fakir Mohamed v Joseph Mugambi & 2 others
    [2005] eKLR
  • Mutiso v Mwangi
    Civil Appl NAI 255 of 1997 (UR)
  • Mwangi v Kenya Airways Ltd
    [2003] KLR 486
  • Major Joseph Mwereri Igweta v Murika M'Ethare & Attorney General
    Civil Appl NAI 8/2000 (UR)
  • Murai v Wainaina (No 4)
    [1982] KLR 38
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another
    [2014] eKLR
On appeal from
Environment and Land Court
ELC No. 258 of 2020
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Munikah (Appealing as one of the Personal Representatives and the Executor/Administrator of the Will of the Estate of Alfred Josse Nakaya) v Wangai & another (Civil Application E472 of 2022) [2023] KECA 223 (KLR)", Case Analysis (2023). Civil Application No. E010 of 2023 (as inferred from the rule 4 application dated December 8, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/223/eng@2023-03-03

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