[2017] KEHC 8053 (KLR)
The court found that the delay between the delivery of the Kadhi's Court judgment and the filing of the application for leave to appeal was less than two months, which is not inordinate. The applicant's request for typed proceedings and her residence in Italy provided a reasonable explanation for the delay. The...
Source-derived case information.
- Citation
- [2017] KEHC 8053 (KLR)
- Parties
- Applicant: Tatu Juma Maro; Respondent: Mohamed Malanga Ndebe
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 32 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- SJ Chitembwe
- Legal Topics
- Extension of Time, Leave to Appeal, Succession Disputes, Marriage Validity, Estate Administration
- 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
Tatu Juma Maro
Applicant
Mohamed Malanga Ndebe
Respondent
Procedural Posture
Miscellaneous Application / 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 Kadhi's Court judgment.
- 2 Whether the delay in filing the application was inordinate or justified.
- 3 Whether the intended appeal is arguable and merits consideration by another court.
Ratio Decidendi
The court found that the delay between the delivery of the Kadhi's Court judgment and the filing of the application for leave to appeal was less than two months, which is not inordinate. The applicant's request for typed proceedings and her residence in Italy provided a reasonable explanation for the delay. The court also determined that the intended appeal was arguable, particularly regarding the validity of the alleged marriage and ownership of the disputed property. In the interest of justice, the applicant was granted leave to file the appeal out of time, with directions to file the Memorandum of Appeal within thirty days.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file the Memorandum of Appeal within thirty (30) days.
- Parties shall bear their own costs of the application.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
MISC. CIVIL APPLICATION NO. 32 OF 2016
IN THE MATTER OF: THE ESTATE OF MWATIME JUMA MARO (DECEASED)
AND
IN THE MATTER OF: THE ESTATE PROPERTY KNOWN AS GEDE/DABASO/655
TATU JUMA MARO.....................................................APPLICANT
VERSUS
MOHAMED MALANGA NDEBE.............................RESPONDENT
RULING
The application dated 5. 7.2016 seeks leave of the court to file an appeal out of time against the judgement of the Hon. Kilifi Kadhi delivered on 16th May, 2016. The application is supported by the affidavit of Tatu Juma Maro sworn on 5th July, 2016. The respondent filed a replying affidavit sworn on 25th September, 2016.
Counsel for the applicant submit that the judgement of the Kadhi was delivered on 16th May, 2016 in Succession Cause Number 4 of 2015. On 8th June, 2016, counsel wrote to the Kilifi Court requesting for typed proceedings. However, no proceedings were supplied. It is submitted that the respondent alledged that he was the deceased’s husband yet no marriage certificate was annexed. The property in dispute was bought from proceeds received after the sell of the applicant’s parents’ property. The applicant resides in Italy and this caused the delay in filing the appeal.
On his part, counsel for the respondent maintains that the applicant participated in the proceedings before the Kadhi. The respondent lived with the deceased for five years before passing on in his hands. The deceased was married to the respondent. The marriage was celebrated at the Kikambala Mosque and was presided over by Imam Masoud in May, 2009. It is also submitted that there has been a delay of five months in filing the application. This delay is inordinate.
The record shows that the Honourable Kadhi delivered his judgement on 16th May, 2016. The current application was filed on 5th July, 2016. This is a period of less than two months. I do find that the delay is not inordinate. Counsel for the applicant also requested for typed proceedings on 8th June, 2016 which proceedings were not supplied. Although the respondent maintains that the applicant does not need the proceedings to prepare the Memorandum of Appeal, it is evident that one has to read the proceedings before drafting the Memorandum of Appeal. I have seen the handwritten record of the Honourable Kadhi and do note that although it is legible, it would be prudent to obtain the typed proceedings as some sections of the proceedings are not clear.
Apart from the above, I do note that the appeal is arguable. The applicant contends that her late sister was not married to the respondent. There will be need to pursue the appeal so that the applicant’s claim can be viewed by another court. The applicant did not testify before the Kadhi’s Court. None of the applicant’s sisters or brothers testified before the Kadhi’s Court. The dispute involves a house which is alledged to have been owned by the deceased. The applicant maintains that the deceased was not the owner of the house.
In the end, I do find that in the interest of justice, the applicant has to be granted leave to pursue her appeal. The application dated 5th July, 2016 is merited and is hereby allowed. The applicant to file the Memorandum of Appeal within thirty (30) days hereof. Parties shall bare their own costs of the application.
Dated and delivered in Malindi this 31st day of January, 2017.
S.J. CHITEMBWE
JUDGE