[2023] KEHC 2831 (KLR)
The court found that the delay in filing the appeal was reasonably explained by the circumstances of the Covid-19 pandemic, specifically the applicant's inability to access the ruling due to lack of an email address. The court held that the applicant's right to appeal should not be defeated by technicalities...
Source-derived case information.
- Citation
- [2023] KEHC 2831 (KLR)
- Parties
- Applicant: Mr Lugadiru; Respondent: Mr Iddi
- Court
- High Court
- Court Station
- High Court at Vihiga
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 7 of 2022
- Procedural Posture
- Succession Cause / Ruling on Application for Extension of Time and Stay of Proceedings
- Outcome
- application allowed
- Judges
- WM Musyoka
- Legal Topics
- Extension of Time, Stay of Proceedings, Appeals in Succession Matters, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mr Lugadiru
Applicant
Mr Iddi
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Extension of Time and Stay of Proceedings
Legal Issues
- 1 Whether the applicant should be granted extension of time to file an appeal against the ruling delivered on April 30, 2020.
- 2 Whether stay of proceedings and maintenance of status quo should be granted pending appeal.
Ratio Decidendi
The court found that the delay in filing the appeal was reasonably explained by the circumstances of the Covid-19 pandemic, specifically the applicant's inability to access the ruling due to lack of an email address. The court held that the applicant's right to appeal should not be defeated by technicalities regarding the advocate's status on record. The court therefore exercised its discretion to grant the extension of time to file the appeal, as well as stay of proceedings and maintenance of status quo, to allow the applicant to pursue an appeal. Costs were ordered to be in the cause.
Court Disposition
application allowed
Orders
- Extension of time to file appeal against the ruling delivered on April 30, 2020 is granted.
- Stay of proceedings and maintenance of status quo granted pending appeal.
Full Case Text
Judgment text and source record
15 paragraphs
In re Estate of John Murusa (Deceased) (Succession Cause 7 of 2022) [2023] KEHC 2831 (KLR) (24 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2831 (KLR)
Republic of Kenya
In the High Court at Vihiga
Succession Cause 7 of 2022
WM Musyoka, J
March 24, 2023
Ruling
1. On April 30, 2020, I delivered a ruling, where I allowed a revocation application and dismissed another. I directed the administrator to apply for confirmation of his grant.
2. The application, that I am called upon to determine, dated December 20, 2021, arises from that ruling, and it seeks extension of time to file appeal against the orders made in the ruling, stay of proceedings and maintenance of status quo. Delay in filing appeal is explained on the basis that the ruling was delivered online, at the height of the Covid-19 pandemic, and the applicant did not have an email address, so he could not be contacted on that account.
3. The application is opposed. There are grounds of opposition. It is said that the Advocate for the applicant was not on record, and the delay was inordinate.
4. The ruling was delivered during the Covid-19 pandemic period, and I find that to be a reasonable excuse for the applicant not acting on time. The applicant has a right to challenge a decision of this court at a higher court, and that right ought to not be frustrated by the technicality of his Advocate not being properly on record.
5. The applicant is entitled to his day at the Court of Appeal, to get a second opinion on the matters at hand. I shall accordingly grant the prayers in the application dated January 31, 2022. Costs shall be in the cause.
6. It is so ordered.
CDELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS…………….24th…………….………...….DAY OF …………………March.………..…………….2023WM MUSYOKAJUDGEErick Zalo, Court Assistant.Mr Lugadiru, instructed by Lugadiru & Company, Advocates for the applicant.Mr Iddi, instructed by Nandwa & Company, Advocates for the administrator.2