[2021] KEHC 7500 (KLR)
The court found that the applicant had provided a reasonable explanation for the delay in filing the Notice of Appeal, particularly in light of the disruptions caused by the Covid-19 pandemic. The court was satisfied that no prejudice would be caused to the respondent by granting the orders sought. Consequently, the...
Source-derived case information.
- Citation
- [2021] KEHC 7500 (KLR)
- Parties
- Applicant: Esther Kakenya Magiro; Respondent: Lilian Reteti Momboshi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 607 of 2013
- Procedural Posture
- Succession Application / Ruling on Application for Extension of Time and Leave to Appeal
- Outcome
- application allowed
- Judges
- REA Ougo
- Legal Topics
- Extension of Time, Leave to Appeal, Succession Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Kakenya Magiro
Applicant
Lilian Reteti Momboshi
Respondent
Procedural Posture
Succession Application / Ruling on Application for Extension of Time and Leave to Appeal
Legal Issues
- 1 Whether the applicant should be granted extension of time to file an application for leave to appeal against the judgment and decree.
- 2 Whether leave should be granted to the applicant to lodge an appeal to the Court of Appeal against the ruling.
- 3 Whether the time to lodge a Notice of Appeal against the decree should be enlarged.
Ratio Decidendi
The court found that the applicant had provided a reasonable explanation for the delay in filing the Notice of Appeal, particularly in light of the disruptions caused by the Covid-19 pandemic. The court was satisfied that no prejudice would be caused to the respondent by granting the orders sought. Consequently, the court exercised its discretion to extend the time for filing the application for leave to appeal, granted leave to appeal to the Court of Appeal, and enlarged the time for lodging a Notice of Appeal. The court also deemed the Notice of Appeal already filed as duly filed and served, ensuring that the applicant's right to appeal was preserved in the interests of justice.
Court Disposition
application allowed
Orders
- Time within which the 1st petitioner/applicant can file and/or lodge an application for leave to appeal against the judgment and decree of the court rendered on 2/5/2015 is extended.
- Leave is granted to the 1st petitioner/applicant to lodge an appeal to the Court of Appeal against the ruling dated 2/5/2021 within 30 days from the date of this ruling.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
SUCCESSION NO. 607 OF 2013
IN THE MATTER OF THE ESTATE OF WILLIAM SANKEI MOMPOSHI-(DECEASED)
ESTHER KAKENYA MAGIRO.............1ST PETITIONER/APPLICANT
VERSUS
LILIAN RETETI MOMBOSHI..................................2ND PETITIONER
RULING
1. I have considered the application dated 3/9/2020, the supporting affidavit in support of the application, the replying affidavit filed by the Respondent and I note the following; the applicant has explained the reason why she could not file the Notice on time, that she sent a letter to her lawyer which did not reach on time. Considering the events of 2020, the year Covid 19 hit this nation and the world at large, I will give the applicant the benefit of doubt. The applicant has to obtain leave to appeal as correctly stated.
2. Considering the facts as deponed I find that no prejudice caused to the Respondent I therefore grant the following orders;
(1) I extend time within which the 1st petitioner/applicant can proceed to file and or lodge an application for leave to file an appeal against the judgment and decree of the court rendered on the 2/5/2015.
(2) Leave is granted to the 1st petitioner/applicant to lodge and appeal to the Court of Appeal against the Ruling dated 2/5/2021 within 30 days from today.
(3) I also enlarge time within which to lodge a Notice of appeal against the decree issued on the 2/5/2019 by 7 days.
(4) Now that the Notice of appeal was filed on the 19/2/2020, the same shall be deemed as duly filed and served.
Costs shall be in the cause.
DATED, SIGNED AND DELIVERED AT KISII THIS 16TH DAY OF APRIL, 2021.
R. E. OUGO
JUDGE
In the presence of:
Mr. Kipngetich For the Applicant
Ms. Lillian 2nd Petitioner Present
Kevin Lekishon Momposhi Present
Ms Rael Court Assistant