[2019] KEHC 3543 (KLR)
The court found that the applicant had filed the notice of appeal within the prescribed time and promptly filed the present application for leave and extension of time. The respondent's argument regarding the lack of merit in the intended appeal was deemed irrelevant at this stage, as the merits are for the Court of...
Source-derived case information.
- Citation
- [2019] KEHC 3543 (KLR)
- Parties
- Applicant: Isaac Kwiha Ngigie; Respondent: Diana Nyambura Kiragu; Respondent: Grace Wanjiru Ngigie
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 578 of 2004
- Procedural Posture
- Succession Cause / Ruling on Application for Leave to Appeal and Extension of Time
- Outcome
- Application allowed; leave to appeal out of time granted; notice of appeal deemed duly filed and served; costs to respondents.
- Judges
- J Ngaah
- Legal Topics
- Leave to Appeal, Extension of Time, Representation Change
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Isaac Kwiha Ngigie
Applicant
Diana Nyambura Kiragu
Respondent
Grace Wanjiru Ngigie
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Leave to Appeal and Extension of Time
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time against the judgment delivered on 12 November 2018.
- 2 Whether the applicant should be allowed to change legal representation after judgment.
- 3 Whether the notice of appeal filed should be deemed as duly filed and served.
Ratio Decidendi
The court found that the applicant had filed the notice of appeal within the prescribed time and promptly filed the present application for leave and extension of time. The respondent's argument regarding the lack of merit in the intended appeal was deemed irrelevant at this stage, as the merits are for the Court of Appeal to determine. The court saw no reason to deny the applicant leave to appeal and accordingly granted the orders sought, deeming the notice of appeal as duly filed and served. Costs of the application were awarded to the respondents.
Court Disposition
Application allowed; leave to appeal out of time granted; notice of appeal deemed duly filed and served; costs to respondents.
Orders
- Leave to appeal out of time is granted to the applicant.
- The notice of appeal dated 23 November 2018 and filed on 27 November 2018 is deemed as duly filed and served.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CAUSE NO. 578 OF 2004
(IN THE MATTER OF THE ESTATE OF KIRAGU NGIGIE)
ISAAC KWIHA NGIGIE.........................................APPLICANT
VERSUS
DIANA NYAMBURA KIRAGU...................1ST RESPONDENT
GRACE WANJIRU NGIGIE.......................2ND RESPONDENT
RULING
The applicant is seeking leave to have his newly appointed advocates represent him in this cause, the cause having been concluded and the judgment delivered; he also seeks extension of time within which to apply for leave to appeal against the decision of this court delivered on 12 November 2018. If this leave is granted, he wants yet another leave to appeal.
These prayers are encapsulated in the applicant’s summons general dated 3 December 2018 and supported by the applicant’s own affidavit in which he has deposed that though his previous advocates timeously filed and served a notice of appeal after the delivery of the judgment of 12 November 2018 no leave had been sought and by the time this application was filed he was already out of time.
The 1st respondent opposed the summons and filed a replying affidavit swearing that the applicant is only out to delay the completion of the administration of the deceased’s estate. The intended appeal, so he has sworn, does not have any chance.
I note that indeed the applicant filed the notice of appeal within time and soon thereafter filed the present application. This has not been contested by the respondent.
It may be that the applicant’s intended appeal has no chance of succeeding as argued by the respondents but this is not for me to determine; this is a question that should be taken up in the Court of Appeal. All I can say is that I do not find any reason to deny him leave to appeal. Accordingly leave is hereby granted for him to appeal and the notice of appeal dated 23 November 2018 and filed on 27 November 2018 is deemed as duly filed and served. The respondents shall, however, have the costs of the application.
Dated, signed and delivered in open court this 18th day of October 2019
Ngaah Jairus
JUDGE