[2021] KECA 353 (KLR)
The court found that the applicant had satisfactorily explained the delay in filing the intended appeal, primarily due to her advanced age and ill-health, and that these reasons were not controverted by the respondent. The court held that the subsequent transfer of the disputed property to the respondent was not a...
Source-derived case information.
- Citation
- [2021] KECA 353 (KLR)
- Parties
- Applicant: Tabitha Njiru M’Ringera; Respondent: Kaburu M’Mbutura
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Application 108 of 2019
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time to File and Serve Record of Appeal
- Outcome
- application allowed
- Judges
- F Sichale
- Legal Topics
- Extension of Time, Appeals Process, Delay Explanation, Succession Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tabitha Njiru M’Ringera
Applicant
Kaburu M’Mbutura
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time to File and Serve Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing and serving the record of appeal.
- 2 Whether the transfer of the disputed property to the respondent renders the application moot.
Ratio Decidendi
The court found that the applicant had satisfactorily explained the delay in filing the intended appeal, primarily due to her advanced age and ill-health, and that these reasons were not controverted by the respondent. The court held that the subsequent transfer of the disputed property to the respondent was not a relevant consideration in determining whether to grant an extension of time. Accordingly, the court exercised its discretion under Rule 4 of the Court of Appeal Rules to allow the application for extension of time, enabling the applicant to file her appeal within 45 days.
Court Disposition
application allowed
Orders
- The motion dated 11th July, 2018 is allowed.
- The applicant to file an appeal within 45 days of the date of this ruling.
Full Case Text
Judgment text and source record
23 paragraphs
M’Ringera v M’Mbutura (Civil Application 108 of 2019) [2021] KECA 353 (KLR) (17 December 2021) (Ruling)
Neutral citation number: [2021] KECA 353 (KLR)
Republic of Kenya
In the Court of Appeal at Nyeri
Civil Application 108 of 2019
F Sichale, JA
December 17, 2021
Between
Tabitha Njiru M’Ringera
Applicant
and
Kaburu M’Mbutura
Respondent
(Being an application for extension of time to file and serve the record of appeal out of time from the judgment of the High Court of Kenya at Meru (Onginjo, J) dated 29th November, 2018 IN MERU HIGH COURT SUCCESSIONCAUSE NO. 196 OF 2013)
Ruling
1. The motion dated 11th July, 2018 came up before me for hearing on 8th December, 2021. In the motion, the applicant seeks an order for extension of time in order to file and serve the record of appeal. The motion is supported by the affidavit of Tabitha Njiru M’Ringera who depones that she is 82 years old and ailing; that the deceased person died on 23rd April, 1999 leaving behind two sons, the respondent herein and her late husband, M’ Ringera M’Mbutura; that she was aggrieved by the decision of Onginjo, J. delivered on 28th November, 2018; that on 14th December, 2018, she filed a Notice of Appeal which was served upon the respondent on 19th December, 2018; that she thereafter fell sick until May, 2019 when her health condition improved; that she was unable to follow up her intended appeal on account of illness and finally, that her late husband and the respondent are entitled to equal shares of their father’s property.
2. In a replying affidavit dated 24th September, 2019, Kaburu M’Mbutura did not refute the applicant’s averments as to her age and ill-health. He however admits that their late father’s title Abothuguchi/Mariene/104 measuring one acre has since been transferred to himself and hence the motion is overtaken by events.
3. An application for extension of time is premised on Rule 4 of this Court’s Rules. It provides:“(4).The Court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.”
4. In my view, the applicant in her depositions explained the delay in filing the intended appeal, having filed the Notice of Appeal. As stated above, the said reasons were not controverted by the respondent. In my view, the fact that the subject matter of the dispute being LR No. Abothuguchi/Mariene/104 having been transferred to the respondent, is not one of the reasons for consideration in an application such as this one.
5. I am satisfied that the applicant has been able to satisfy the court on the reasons for the delay.
6. Accordingly, the motion dated 11th July, 2018 is hereby allowed. The applicant to file an appeal within 45 days of the date of this ruling.
7. It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 17THDAY OF DECEMBER,2021. F. SICHALE.........................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR