[2022] KEHC 1216 (KLR)

REPUBLIC OF KENYA

HIGH COURT OF KENYA

AT KERICHO

MISC. SUCCESSION CAUSE NO.70 OF 2019

ESTATE OF THE LATE KIPSOI ARAP KENDUIWO (DECEASED)

IRENE CHEROTICH.........................................................................................1ST APPLICANT

MARY CHEPKIRUI..........................................................................................2ND APPLICANT

VERSUS

WESLEY KIPKURUI.....................................................................................1ST RESPONDENT

KIPRONO BII................................................................................................2ND RESPONDENT

KIPNGENO ANDREW BII.........................................................................3RD RESPONDENT

R U L I N G

1. The Application coming for consideration in this ruling is the one dated 23/9/2019 seeking inter alia for leave to appeal out of time from the ruling delivered on 6/3/2019.

2. The Application is based on the grounds on the face of it and it is supported by the Affidavit of IRENE CHETOTICH, the 1st Applicant in the Application sworn on 23/9/2019.

3. The 1st Applicant has deposed as follows in the said Supporting Affidavit.

(i) THAT she and the co-applicant are joint administrators of the estate of Kipsoi Arap Kenduiwo (deceased) and vide an application dated 28/3/2017 they lodged an application for confirmation of grant.

(ii) THAT upon serving the Respondents herein with the summons for confirmation, the Respondents lodged an affidavit in protest to the confirmation of grant, after the hearing the protest the learned trial magistrate delivered a ruling on 6/3/2019.

(iii) THAT being dissatisfied in the ruling of the trial magistrate, they instructed their advocate to file an appeal, the advocate advised them to file an application for review setting aside the ruling, the application for review was subsequently dismissed on 21/8/2019.

(iv) THAT notwithstanding the dismissal their advocate advised that they ought to have lodged an appeal against the ruling not a review, it is against such background that they were now seeking leave of the court to file an appeal out of time.

4. The Respondents opposed the Application and they filed an undated Replying Affidavit sworn by the 2nd Respondent filed in the Court on 18/10/2019 in which it is deposed as follows: -

(i) THAT the trial magistrate vide his ruling dated 6/3/2019 provided for all beneficiaries and that the moment the applicants herein lodged a review they lost the right of appeal.

5. The parties filed written submissions which are as follows:- The Applicants submitted that the court was vested with jurisdiction to grant leave to file appeal out of time, where it was satisfied that the applicant had good and sufficient cause for not filing the appeal in time. The applicants cited the cases of Thuita Mwangi vs. Kenya Airways Limited [2003] eklr; Samuel Mwaura Muthumbi vs. Jsephine Wanjiru Ngugi & Anor [2018] eklr; SAJ Ceramics vs. Joel Maithya [2017] eklr.

6. The Applicants submitted that the circumstances of their case warranted the court’s intervention namely that the delay in lodging their appeal was occasioned by the fact that they filed an application for review whilst acting on advice of their advocates which was subsequently determined after the lapse of time allowed to lodge an appeal. The applicants sought that the mistakes of their counsel should not be visited upon them, they cited the following cases Lasertech (K) Limited & Amin Sherali Mawani vs. Jimcab Services Limited [2020] eklr; Nancy Wangari Kinyua vs. Rose Wambui & Anor [2019] eklr.

7. The Applicants further submitted that a party could file an appeal once a review had been dispensed with they cited the following cases In Re Estate of Charles Mumbuche Gichonge (Deceased) [2019] eklr; Chudha International & 2 Ors vs. Uhuru Highway Development Limited & 2 Ors [2006] eklr; Republic vs. Anti-Counterfeit Agency & 2 Ors Ex Parte Surgipharm Limited [2014]eklr.

8. The Respondents submitted that the applicants had not satisfied the grounds set out in order to seek leave to appeal out of time.

9. The Respondents submitted that the applicants had waited until their application for review was dismissed, before seeking for an extension to file an appeal out of time, the Respondents found this to be mischievous and an abuse of court process.

10. The Respondents submitted that the section 45 (2) of the Civil Procedure Act does not provide for an aggrieved party to file an appeal and a review simultaneously and the instant application offended the rules of procedure governing court proceedings.

11. The Respondents submitted that the applicants who were aggrieved with the mode of distribution had applied for review and the grounds used for the review, are the same ones that were used in the preferred appeal.

12. I have considered the rival submissions filed by the parties. The sole issues for determination in this ruling is whether the applicant should be granted leave to appeal out of time and whether an appeal lies where an application for review has been dispensed with.

13. On the issue as to whether the applicants are entitled to leave to file their appeal out of time. I find that the applicants have furnished the court with good and sufficient cause.

14. The High Court is vested with power to grant leave to appeal out of time under section 79 (G) of the Civil Procedure Act which states as follows: -

“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:

Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”

Similarly, the court can allow for enlargement of time as provided for in section 95 of the Civil Procedure Act

“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”

15. As to the principles to be considered in exercising the discretion whether or not to enlarge time in First American Bank of Kenya Ltd vs. Gulab P Shah & 2 Others Nairobi (Milimani) HCCC NO. 2255 of 2000 [2002] 1 EA 65 the court set out the factors to be considered in deciding whether or not to grant such an application and these are “(i). the explanation if any for the delay; (ii). the merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice; (iii). Whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant.”

16. On the issue as to whether the applicants are entitled to lodge an appeal after a review has been determined I find that the applicant is entitled to lodge the appeal.

17. In the current case, I find that it is in the interest of justice that the applicant be granted leave to appeal out of time since this case involves distribution of family wealth and it has not been shown that the Respondents will suffer any prejudice.

18. I accordingly allow the application dated 23/9/2019 on condition that:-

(i) The said appeal is filed within 30 days of this date.

(ii) Failure to file the said appeal within the time stated above, the certificate of confirmation to be executed.

(iii) The cost of this Application to abide the Appeal.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 18TH DAY OF MARCH, 2022.

A. N. ONGERI

JUDGE