[2019] KEHC 11354 (KLR)
The court found that the applicant's delay in filing the appeal was short and satisfactorily explained, as the applicant's counsel was not served with the notice of the ruling and acted promptly upon learning of it. The court exercised its discretion to allow the application for extension of time, granting the...
Source-derived case information.
- Citation
- [2019] KEHC 11354 (KLR)
- Parties
- Applicant: Lucy Nyokabi Wambui; Respondent: Hellen Wangare Wambui
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 877 of 2007
- Procedural Posture
- Succession Cause / Ruling on Application for Extension of Time and Stay of Proceedings
- Outcome
- Application for extension of time allowed; application for stay of proceedings refused.
- Judges
- AO Muchelule, JO Nyarangi
- Legal Topics
- Succession Proceedings, Extension of Time, Right of Appeal, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Nyokabi Wambui
Applicant
Hellen Wangare Wambui
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Extension of Time and Stay of Proceedings
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing the appeal and should be granted leave to file out of time.
- 2 Whether the proceedings should be stayed pending the intended appeal.
Ratio Decidendi
The court found that the applicant's delay in filing the appeal was short and satisfactorily explained, as the applicant's counsel was not served with the notice of the ruling and acted promptly upon learning of it. The court exercised its discretion to allow the application for extension of time, granting the applicant seven days to file and serve the Notice of Appeal. However, the court refused to stay the proceedings, holding that such jurisdiction could only be exercised where an appeal had already been filed, and that the merits of the intended appeal were not a consideration at this stage. The court also noted the long pendency of the matter and found that no serious prejudice would...
Court Disposition
Application for extension of time allowed; application for stay of proceedings refused.
Orders
- Applicant granted 7 days to file and serve the Notice of Appeal.
- Request for stay of proceedings refused.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 877 OF 2007
IN THE MATTER OF THE ESTATE OF JANE WAMBUI GATONYE (DECEASED)
LUCY NYOKABI WAMBUI …………PETITIONER/APPLICANT
VERSUS
HELLEN WANGARE WAMBUI ……OBJECTOR/RESPONDENT
RULING
1. The ruling that is sought to be appealed from was delivered on 19th November 2018. It was scheduled to be delivered on 31st October 2018 but was not. Notice was sent to the counsel for 19th January 2018. The advocate of the applicant Lucy Nyokabi Wambui states that they were not served with the notice. The respondent Hellen Wangare Wambui similarly states that they did not receive the notice, but that cannot be true because on the day of the ruling there was counsel holding brief for her advocate. The present application for leave to extend time for the filing of the appeal against the ruling was filed on 19th December 2018. The applicant was late in filing the appeal by 16 days. She states that her advocate became aware of the ruling on 3rd December 2018, and on the same day wrote to the court for proceedings.
2. I consider that the right to appeal is a constitutional one. Where one seeks to appeal out of time he has to explain the delay to the satisfaction of the court (Nicholas Kiptoo Arap Korir Salat –v- IEBC & 7 Others [2011]eKLR). The explanation for the delay (the claim that counsel did not receive the ruling notice) was not materially challenged. I determine that the delay was for a short period, and has been satisfactorily explained. I exercise my discretion and allow the application. I allow the applicant 7 days to file and serve the Notice of Appeal.
3. On whether the proceedings should be stayed pending the hearing and determination of the appeal that is intended to be filed, I consider that such jurisdiction is exercised under Order 42 rule 6(2)of the Civil Procedure Rules. There has to be an appeal already filed before such jurisdiction can be invoked. Secondly, the merits of the appeal would not be a consideration for this court.
4. I further consider that the cause was filed in 2007. The deceased left an estate when she died on 28th December 2006. She left a Will whose executor was the applicant. The beneficiaries of the Will were the applicant and her late brother John Ngugi who was survived by his widow Jane Wanjiku Ngugi. The respondent and her sister Susan Ann Wanjiku received no provision. The ruling sought to be challenged reinstated the respondent’s objection to the petition and challenge of the Will. It is clear to me that considering how long this matter has been in court, no serious prejudice will be occasioned by this court proceeding to hear the dispute, even as the applicant proceeds with the appeal process.
5. In conclusion, I refuse the request to stay the proceedings.
6. The applicant has been indulged. She will pay the costs of the application.
DATED and SIGNED at NAIROBI this 22ND day of MAY 2019
A.O. MUCHELULE
JUDGE
DATED and DELIVERED at NAIROBI this 28TH day of MAY 2019
J.N. ONYIEGO
JUDGE