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High CourtDismissed

In re Estate of the late (Succession Cause) - Objectors/Applicants v Administrator/Respondent

High Court of Kenya
21 January 2020
2,392 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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In Kenyan succession cases, failing to meet deadlines or explain delays can result in your appeal being dismissed.

What this practically means

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Executive summary

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The Objectors/Applicants moved the High Court at Machakos by Notice of Motion dated 6/11/2019 seeking extension of time to file an application for leave to appeal against part of a ruling delivered on 30/07/2019, and leave to appeal to the Court of Appeal. They blamed their former advocates' oversight for the failure to seek leave, arguing the intended appeal raised meritorious grounds and that the Respondent could be compensated by costs. The Administrator/Respondent opposed, contending the application was incompetent, an afterthought brought almost four months after the ruling, and that she stood to be prejudiced by further delay in a cause pending since 1994. The court held that the Law of Succession Act is self-sufficient and the Applicants had cited inapplicable Civil Procedure provisions, but excused this as a procedural technicality under Article 159(2)(d). It found the Notice of Appeal already filed without leave incompetent and of no force of law. Applying the First American Bank v Shah principles, the court found no adequate explanation for the delay: the present, not the former, advocates had lodged the Notice of Appeal and had done nothing between 9/08/2019 and 6/11/2019. The court also noted the Respondent could not be adequately compensated in costs, being kept out of the property (LR 337/449 Athi River) allocated to her absolutely by the confirmed grant of 30/09/2014. The application was dismissed with each party bearing their own costs as members of one family.

Key legal issues

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01

Whether the application was brought under the correct provisions of the law

Holding

The application was brought under the wrong provisions (Civil Procedure Act and Rules), but the court excused this as a procedural lapse in favour of substantive justice under Article 159(2)(d)

Reasoning

The court held that the Law of Succession Act is self-containing and governs all succession matters, with the Civil Procedure Rules entering only via Rule 63 of the Probate and Administration Rules. The provisions cited by the Applicants were not permitted under Rule 63. Nonetheless, the court treated the error as a technicality excusable under Article 159(2)(d), so the Applicants passed the first hurdle.

p. 2
02

Whether the Notice of Appeal already filed without leave is sustainable

Holding

The Notice of Appeal filed without leave is incompetent, bad in law, and has no force of law

Reasoning

The court found it improper for the Applicants to file a Notice of Appeal and then return to seek leave. Counsel for the Applicants conceded the impropriety. The notice, though lodged at the Court of Appeal registry, cannot be relied upon for want of leave.

p. 2
03

Whether an adequate explanation for the delay was given

Holding

No good reasons were given; the blame-shifting to the former advocate failed because the present counsel lodged the Notice of Appeal and did nothing for about four months

Reasoning

Applying the First American Bank v Shah principles, the court found the record contradicted the claim that the former advocates were at fault: the present advocates filed a change of advocates and Notice of Appeal on 9/08/2019 but took no steps until 6/11/2019. The delay of almost four months rendered the application an afterthought.

p. 3
04

Whether the Respondent would suffer prejudice

Holding

Costs would not adequately compensate the Respondent, who remains unable to access the property allocated to her or receive rent from it

Reasoning

The succession cause, filed in 1994, needed closure. Granting leave would delay finalisation and keep the Respondent out of the property (LR 337/449 Athi River) allocated to her absolutely by the confirmed grant of 30/09/2014, so an award of costs would be inadequate compensation.

p. 3

Legal principles established

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  • Under the Law of Succession Act there is no automatic right of appeal to the Court of Appeal; leave of the High Court is required and is granted where prima facie there are grounds meriting serious judicial consideration
  • The Law of Succession Act is self-sufficient with its own substantive law and rules of procedure; the Civil Procedure Rules enter only through Rule 63 of the Probate and Administration Rules
  • A Notice of Appeal filed without the requisite leave of the High Court is incompetent and has no force of law

Court orders

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  1. 1.The Applicants' Notice of Motion dated 6/11/2019 is dismissed
  2. 2.Each party to bear their own costs as parties are members of one family
Jurisdiction invoked
Section 50 of the Law of Succession Act (leave to appeal from the High Court to the Court of Appeal); Article 159(2)(d) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Estate of the late (Succession Cause) - Objectors/Applicants v Administrator/Respondent", Case Analysis (2020). . Source: 

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