[2022] KEHC 1467 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HIGH COURT SUCCESSION CAUSE NO. 10 OF 2018

ESTATE OF MUTUA NZENGU MWEUaliasNZANGU (DECEASED)

KOKI MUTUA..............................................................................1ST PETITIONER/APPLICANT

VERSUS

NGINA MUTUA........................................................................2ND PETITIONER/RESPONDENT

RULING

1. Before me is an application by way of Notice of Motion dated 7th July 2021, brought by the applicant under section 47 of the Law of Succession Act (cap.160) and seeks orders that –

1) This honourable court be pleased to grant leave to the applicant to file an appeal against the judgment issued on 24th January 2019 and the annexed Notice of Appeal be deemed as duly filed upon payment of requisite court fees.

2) That the costs of the application be provided for.

2. The application has grounds on the face of the Notice of Motion that the applicant wishes to appeal against the whole decision to the Court of Appeal and needs leave to so appeal, and that the applicant has had health issues and thus she could not move the court earlier.

3. The application was filed with a supporting affidavit sworn by the applicant Koki Mutua on 6th July 2021 in which it was deponed that the applicant is of advanced age has been unwell thus the reason for delay in filing the application and that she will fast track the appeal if granted leave to appeal.

4. The application is opposed through the affidavit of Ngina Katua one of the respondents, sworn on 17/8/2021, in which it was deponed that the appeal was frivolous, vexatious and an abuse of court process and that the delay is also unreasonable and that though the applicant was ordered in February 2020 to file a formal application for leave to appeal within 7 days, she did not file the application until 6/7/2021.

5. The application was canvassed through filing of written submissions. In this regard, I have perused and considered the written submissions of the counsel for the applicant Andrew Makundi & company, and also the written submissions filed by M/s Kitindio Musembi & company for the respondent.

6. This is an application by the applicant seeking leave to appeal to the Court of Appeal from a decision in a succession cause from the High Court.

7. I note that under the provisions of the Law of Succession Act (cap.160), there is no specific provision for filing an appeal to the Court of Appeal from a succession cause heard and determined by the High Court. However, courts have held that an appeal to the Court of Appeal can be filed, subject to leave being granted by the High Court or the Court of Appeal. This position was reiterated by the Court of Appeal in the case of Rhoda Wairimu Karanja & Another –vs- Mary Wangui Karanja & Another (2014) eKLR when the court stated as follows –

“We think we have said enough to demonstrate that under the Law of Succession Act, there is no express automatic right to appeal to the Court of Appeal, that an appeal will lie to the Court of Appeal from the decision of the High Court exercising original jurisdiction with leave of the High Court or where the application for leave is refused, with leave of this court”

8. Thus, in view of the above stated position, I find that this court has jurisdiction to grant leave to the applicant to appeal to the Court of Appeal. It follows that section 79G of the Civil Procedure Act (cap 75) relied upon by the respondent’s counsel does not apply to succession appeals, as they are governed by the Law of Succession Act (cap. 160).

9. I note also that the applicant has explained that she has a prima facie appeal and that the delay in applying for leave to appeal was due to old age and health issues. The respondent on the other hand has argued that the applicant’s intended appeal is frivolous, vexatious and an abuse of court process, and that the delay in bringing the present application is inordinate.

10. From the facts placed before me in the present application, and the fact that the issue herein relates to land, the subject of distribution between the parties, I cannot say that the intended appeal is frivolous.

11. With regard to delay in filing the application, I note that though there was a delay of more than a year, from the date of judgment to the date of filing the present application, it is not disputed that the applicant is fairly old, above 80 years, and that she has been sickly.

12. Thus, I find that there is no inordinate delay in filing the application, as the applicant has adequately explained the delay.

13. Consequently and for the above reasons, I allow the application and grant prayer (1) herein. The appeal should be fast tracked. The costs of the application will follow the results of the appeal.

DELIVERED, SIGNED & DATED THIS 16TH DAY OF MARCH, 2022, IN OPEN COURT AT MAKUENI.

..........................

GEORGE DULU

JUDGE