Gibson Nyange Kiiteria & 1 other v Philemon Madeda Kiteria
The bottom line
#The Court of Appeal refused to extend time to file two probate appeals because the applicants explained no delay and filed no memorandum of appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal against the ruling of 21st September 2022 was arguable
The grounds challenging the revocation-of-grant ruling were arguable, but this alone did not entitle the applicants to extension of time given the inordinate unexplained delay.
The applicants faulted the judge for failing to find fraud in the obtaining of the grant, for holding all beneficiaries were present at confirmation, and for ignoring their long possession of the suit property. The court accepted these grounds as arguable but held that whether the appeal would succeed was not for it to judge; arguability had to be weighed against the unexplained delay and prejudice to the respondent.
Whether the intended appeal against the ruling of 5th October 2023 was arguable
The application for extension of time on this limb failed because no memorandum of appeal was exhibited.
The applicants exhibited a memorandum of appeal only in respect of the September 2022 ruling. Without any memorandum for the October 2023 ruling, the court could not assess arguability or chances of success, and the applicants failed the first and decisive hurdle for rule 4 relief.
Whether the delay in filing the record of appeal against the 21st September 2022 ruling was excusable
The delay of over one year and five months after obtaining the proceedings and certificate of delay was inordinate and unexplained.
The notice of appeal was filed promptly on the day of the ruling and proceedings were requested and obtained without apparent difficulty, with a certificate of delay issued on 23rd January 2023. Yet no steps were taken to file the record for over seventeen months, and no plausible explanation was offered. The court also found the extension would prejudice the respondent by impeding administration of the estate.
Counsel's contention that arguability of an intended appeal is not a mandatory consideration in a rule 4 application
The court rejected this as a misconstruction of its earlier decision in Taib vs. Said.
Counsel had cited Taib vs. Said for the proposition that arguability is a matter for the full bench. The court clarified that the decision concerned the merits of applications for leave to appeal, not rule 4 extension applications, and proceeded to apply the established rule 4 factors including arguability.
Legal principles established
#- In rule 4 applications the court considers the length of delay, the reason for delay, the chances of the appeal succeeding, and the prejudice to the respondent; the discretion is unfettered and not confined to these factors.
- A period of delay need not fall within fixed limits, but must be satisfactorily explained.
- An applicant under rule 4 must demonstrate an arguable appeal; where no memorandum of appeal is exhibited, the application fails.
Court orders
#- 1.The Motion for orders to extend time to file the record of appeal against the ruling and orders dated 5th October 2023 is dismissed
- 2.The Motion for extension of time to file the record of appeal against the ruling and orders dated 21st September 2022 is dismissed
- 3.Costs of the Motion awarded to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- Probate and Administration Cause No. E004 of 2021
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gibson Nyange Kiiteria & 1 other v Philemon Madeda Kiteria", Case Analysis (2024). Notice of Motion dated February 22, 2024 (Probate and Administration Cause No. E004 of 2021 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/755/eng@2024-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.