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Court of AppealAllowedCivil Application (extension of time) arising from Succession Cause No. 843 of 1995 and intended Appeal No. 138 of 1998

ZEUDI MIRACH vs 1. GIDE FISSAH ALE GOITOM ) 2. DEHEB BEHRANE ABED ) [1999] KECA 43 (KLR)

Court of Appeal of Kenya
22 October 1999
EOE. Owuor
805 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed a late appeal because the delay came from translating foreign documents, not the appellant's negligence.

What this practically means

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Executive summary

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This was a single-judge application before the Court of Appeal at Nairobi under Rule 4 of the Court's rules, in which Zeudi Mirach sought extension of time to file and serve a notice of appeal, memorandum of appeal and record of appeal against a judgment of Khamoni (J) in Succession Cause No. 843 of 1995 concerning the estate of Fisahaye Goitom. The applicant, who claimed to be the deceased's only wife, had lost her bid to administer the estate solely, the court having directed joint administration with the family of Deheb Berhawe Abed, who claimed to be another wife. Her earlier appeal (No. 138 of 1998) was struck out as incompetent because two Amharic documents in the record had not been translated, contrary to Rule 85(1)(f). The respondent opposed the extension, arguing that the roughly five-month delay in bringing the application was inordinate and that the applicant, who possessed and was wasting the estate, was using delay tactically, and that litigation must come to an end. Owuor, JA accepted that the delay arose from translating the documents and obtaining certification through the Ministry of Foreign Affairs and the Ethiopian Embassy, a process not within the applicant's control, and held the delay was not inordinate. Relying on the dicta of Shah, JA and Omolo, JA, the court held that the need for finality in litigation must be weighed against the interest of justice in cases being decided on the merits. The application was allowed with time limits of seven days for the notice of appeal and seven days thereafter for the memorandum and record of appeal; costs were made costs in the intended appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant's delay of about five months in filing the application for extension of time was inordinate
  2. 2.Whether, notwithstanding the delay, the applicant should be granted extension of time to file and serve a notice of appeal, memorandum of appeal and record of appeal

Key legal issues

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01

Whether the five-month delay in filing the extension application was inordinate

Holding

The delay was not inordinate because it was attributable to the translation and diplomatic certification of the Amharic documents, a process outside the applicant's control.

Reasoning

The appeal had been struck out because two Amharic documents in the record were not translated, contrary to Rule 85(1)(f). The applicant then had to find an interpreter and route the translated documents through the Ministry of Foreign Affairs to the Ethiopian Embassy for certification. The respondent did not dispute this process, only its length. The court found the resulting delay excusable and not inordinate.

p. 2
02

Whether extension of time should be granted notwithstanding the delay and the respondent's prejudice

Holding

Extension was granted; the respondent's prejudice from the applicant's possession of the estate was a factor to weigh, but the interest of justice favoured a hearing on the merits.

Reasoning

The court acknowledged the respondent's position that the applicant was in possession of and benefiting from the estate while the litigation dragged on, and that litigation must come to an end. However, following the dicta of Shah, JA and Omolo, JA, the court held that this consideration must be balanced against the wider interest of justice that cases be resolved on the merits, and so exercised its discretion in favour of the applicant.

p. 2

Legal principles established

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  • The consideration that litigation must come to an end must be weighed against the wider interest of justice that cases be determined on their merits.
  • A delay occasioned by a certification process not within the applicant's control may not be inordinate delay for purposes of extension of time.

Court orders

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  1. 1.The application for extension of time is allowed
  2. 2.The applicant shall file and serve her notice of appeal within 7 days from the date of the order
  3. 3.The applicant shall thereafter file her memorandum and record of appeal within 7 days from the date of filing of the notice
  4. 4.Costs of the application shall be in the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EO
majority

Wrote the judgment

On appeal from
High Court of Kenya
Succession Cause No. 843 of 1995
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I am aware that litigation ought to come to an end and that is unfair that one case should hang over the heads of parties indefinitely. But that consideration must be weighed against the wide interest of justice, namely that where possible, cases should be brought to a close after a hearing on the merits
p. 2End of litigation versus hearing on the merits
My decision on the motion therefore is that the same is hereby allowed. The applicant shall file and serve her notice of appeal within 7 days from today's date, thereafter file her memorandum and record of appeal within 7 days from the date of filing of the notice.
p. 2Final orders granting extension of time
The costs of this application shall be in the intended appeal. Those shall be my orders.
p. 2Costs order

Issues in the judgment

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minor

Internal date inconsistency: the judgment is stated to have been delivered on 3rd November 1998, yet the notice of appeal is said to have been filed on 14th November 1997, before the judgment.

minor

The text of the judgment as reproduced contains typographical corruption (e.g. 'appeaTlh.e', 'TEhnigsl iasphp.lication'), obscuring some passages.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "ZEUDI MIRACH vs 1. GIDE FISSAH ALE GOITOM ) 2. DEHEB BEHRANE ABED ) [1999] KECA 43 (KLR)", Case Analysis (1999). Civil Application (extension of time) arising from Succession Cause No. 843 of 1995 and intended Appeal No. 138 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/43/eng@1999-10-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.