[2007] KEHC 2056 (KLR)
The court found that the applicant had acted promptly upon realizing the procedural error and that the delay was occasioned by following erroneous legal advice rather than any intentional disregard for procedure. The court emphasized that errors of counsel should not be visited upon the litigant and that the...
Source-derived case information.
- Citation
- [2007] KEHC 2056 (KLR)
- Parties
- Applicant: Applicant (Name not specified); Respondent: Respondent (Name not specified)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 3281 of 2004
- Procedural Posture
- Succession Cause / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed. Leave to file appeal out of time granted.
- Judges
- KH Rawal
- Legal Topics
- Leave to Appeal Out of Time, Succession Estate Administration, Revocation of Grant
- 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
Applicant (Name not specified)
Applicant
Respondent (Name not specified)
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against the order of the Senior Resident Magistrate in Succession Cause No. 177 of 2003.
- 2 Whether the error in procedure by the applicant's counsel constitutes sufficient cause for extension of time.
Ratio Decidendi
The court found that the applicant had acted promptly upon realizing the procedural error and that the delay was occasioned by following erroneous legal advice rather than any intentional disregard for procedure. The court emphasized that errors of counsel should not be visited upon the litigant and that the applicant had demonstrated sufficient cause for the extension of time. The court was also satisfied that the intended appeal had a good chance of success. Exercising its discretion, the court allowed the application and granted leave to file the appeal out of time, directing that the appeal be filed and served within seven days.
Court Disposition
Application allowed. Leave to file appeal out of time granted.
Orders
- The applicant is granted leave to file an appeal out of time against the order of the Senior Resident Magistrate in Succession Cause No. 177 of 2003.
- The appeal shall be filed and served within seven days from the date of this ruling.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Succession Cause 3281 of 2004
IN THE MATTER OF THE ESTATE OF MUSANJI KUBUTA – DECEASED
RULING
The application of 20th January, 2000 by way of Notice of Motion was provised under Section 50(1) of Law of Succession Act (Cap 160) Sections79 (a) and 3A of the Civil Probate Act, Order XLIX Rules 5 and Order L Rule 1.
It seeks prayers that the applicant be granted leave to file an appeal out of time against the order of learned Senior Resident Magistrate Kerugoya in succession Cause No.177 of 2003 dated 1st October, 2004.
After delivering the judgment, on an application by the present applicant, a stay of execution for 30 days was granted.
The counsel for the Applicant thereafter filed a summons for revocation of the grant on the ground that the learned Senior Resident Magistrate misdirected himself in the interpretation of Section 40 of the Laws of Succession Act (Cap 160), hereinafter referred to as ‘The Act’). The applicant’s counsel then realized that the process in law taken after the said order was erroneous and thus she wants to rectify the same and urged that the error was not intentional and was under her counsel’s advice.
The proposed memo of Appeal is filed along with the application and it is urged that appeal have very good chance of success.
I have perused the judgment and note that the learned Magistrate had not disputed the facts laid down before him.
The Respondent in opposition to the application, has filed grounds of objection dated 24th November, 2006. In short, it raised grounds of delay and competence of the application.
I have carefully considered the application and the affidavit in support with all the annexures. I also note that the applicant was not just idling her time before filing this application. She had promptly filed a summons for revocation under the advice from her counsel, which turned out to be not right. She thus now wants to follow a proper channel to vindicate her complaints against the judgment.
I also note that it is well established principle that errors of the counsel cannot be visited against the litigant.
I am also satisfied that the appeal, if allowed to be filed, has good chance of success.
I therefore use my discretion and allow the appeal to be filed out of time.
I direct that the appeal be filed and served within seven days from the date hereof.
The costs of the application be to the respondent by the applicant.
Dated and signed at Nairobi this 28th day of February, 2007.
K.H. RAWAL
JUDGE
28. 2.07