[2022] KEHC 14746 (KLR)

In re Estate of Kiragu Gachii (Deceased) (Succession Cause 1187 of 2010) [2022] KEHC 14746 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14746 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Cause 1187 of 2010

FN Muchemi, J

November 3, 2022

Between

Francis Muregi Kiragu

Petitioner

and

Joseph Gachii Kiragu

1st Protestor

David Mwaniki Kiragu

2nd Protestor

Ruling

Brief facts 1. The application for determination is dated August 28, 2021 and is brought under rule 73 of theProbate & Administration Rulesseeking for the orders of extension of time and leave to file appeal out of time.

2. In opposition of the said application, the respondent opposed this application relying on the ground set out in his replying affidavit sworn on June 17, 2022.

The Applicant’s Case 3. It is the applicant’s case that judgement of the court was delivered on August 18, 2017 and being aggrieved with the said decision, the applicant states that he instructed his advocates to lodge an appeal. The applicant states that a Notice of Appeal was filed but instead of filing the appeal, his advocates filed an application dated November 12, 2018 seeking conservatory orders on land parcel number LR Iriaini/KairiA/504.

4. The applicant further contends after the ruling of the said application, he realized that no appeal had been filed by his advocate. All he knew was that there was something pending before the Court of Appeal which he thought was an appeal. As such, the applicant contends that he withdrew his instructions from his advocates and sought to handle the matter himself. It is therefore contended that the failure to file an appeal was not intentional but was occasioned by his advocates and as such he ought not to be punished for the mistakes of his advocates.

5. The applicant is apprehensive that he stands to lose the developments on the portion allocated to him by the deceased during his lifetime in the event the orders sought are not granted. As such, he prays that the application be allowed as prayed.

The 1st Respondent’s Case 6. It is the respondent’s case that judgment was delivered on February 18, 2017 confirming the grant. On April 30, 2018, the court granted orders for execution of transmission documents by the Deputy Registrar in place of the 1st protestor. The respondent further contends that on June 18, 2019, the applicant filed an application for stay and for injunctive orders dated June 14, 2019 which was withdrawn on July 25, 2019. The respondent states that the applicant thereafter filed an application in the Court of Appeal Civil Application Number 143 of 2018 which was heard on merit despite the applicant not serving it on the respondent. A full bench of the Court of Appeal made a determination on May 19, 2021 and dismissed the said application for lack of merit.

7. The respondent depones that on May 23, 2022, this matter was called before the court and it was noted that his advocates had not been served with this application and further the applicant refused to serve the notice of intention to act in person together with the instant application after abandoning his advocate. The respondent avers that there is nothing outstanding in the instant matter as all the issues have been settled both in this court and in the Court of Appeal.

8. The main issue for determination is whether the applicant ought to be granted leave to appeal out of time.

Analysis of the evidence and the law 9. It is trite law that the power of the court in deciding an application for extension of time to file an appeal is discretionary and unfettered.

10. The law on extension of time is to be found in section 95 of the Civil Procedure Act which states as follows: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.

11. Section 7 of the Appellate Jurisdiction Act, Cap 9 provides:-The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired.

12. The parameters for the exercise of a court’s discretion have been concisely laid out in the case of Mwangi v Kenya Airways Ltd [2003] eKLR where the Court of Appeal expressed itself thus:-“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether or not to grant an extension of time are; first, the length of the delay; secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.”

13. Judgment in this case was delivered on August 18, 2017 whereby the court confirmed the grant. The applicant filed the Notice of Appeal in the Court of Appeal on August 25, 2017. On April 30, 2018, pursuant to an application dated December 16, 2017, this court granted orders that the Deputy Registrar executes transmission documents in place of the applicant in execution of the certificate of confirmation of grant dated August 18, 2017. The applicant thereafter filed an application in the Court of Appeal being Civil Application Number 143 of 2018 on November 15, 2018 seeking conservatory orders in respect of the grant. The applicant then filed the application dated June 18, 2019 seeking for orders for stay of the orders of this court of April 30, 2018 but later withdrew it. The Court of Appeal rendered its decision on May 19, 2021 dismissing the application seeking conservatory orders on ground that the applicant had not demonstrated that he was granted leave by either this court or the Court of Appeal to file an appeal out of time.

14. It is evident that the Court of Appeal has dealt with the matter before this court. In any event, the notice of appeal was lodged on August 25, 2017 but the applicant never filed his memorandum of appeal or his record of appeal subsequently. It is about five years since the applicant filed his notice of appeal in the Court of Appeal. The applicant attributes the cause of delay on his advocates claiming that he thought that they had lodged an appeal but later learnt that only an application for conservatory orders had been filed. The applicant states that a mistake by his advocates ought not to be visited upon him. I have noted that the ruling by the Court of Appeal was delivered on May 19, 2021. The applicant has brought the instant application on September 7, 2021. The ruling of the Court of Appeal was delivered on May 19, 2021 and this application was filed on three months later. This delay of three months has not been explained. The applicant cannot blame his advocate whom he gave instructions to approach the Court of Appeal. The blame came only after the application was dismissed by the Court of Appeal. The grant having been confirmed 5 years down the line, the applicant has not explained why he took so long to obtain stay orders. The Court of Appeal observed in its ruling that the estate was divided equally among the sons of the deceased and that chances of any appeal succeeding are very slim. The applicant wanted a bigger share than his siblings which is not provided for by the law. I hold the same position that this appeal is not arguable.

15. On the issue of the degree of prejudice the respondent shall stand to suffer if the application is allowed, I find that the interests of justice tilts in favour of the respondent. The respondent shall be greatly prejudiced if the application herein is allowed in that transmission may already have been completed. In that regard, the respondent and the other beneficiaries ought to be allowed to enjoy the fruits of the grant confirmed five (5) years ago.

16. Consequently, I find no merit in this application and dismiss it with costs to the respondent.

DATED AND SIGNED AT NYERI THIS 3RD DAY OF NOVEMBER, 2022. F. MUCHEMIJUDGERULING DELIVERED THROUGH VIDEO LINK THIS 3RD DAY OF NOVEMBER, 2022.