George Itotia Ng'ang'a vMary Wanjiku Kimaru [2002] KECA 152 (KLR)
The bottom line
#The Court of Appeal threw out a late inheritance appeal because the applicant waited fourteen months without explaining the delay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted extension of time under rule 4 of the Court of Appeal Rules to lodge his notice of appeal and the record of appeal out of time – that is, whether the delay of almost 14 months in lodging the application is excusable.
- 2.Whether, as the respondent contended under section 50 of the Law of Succession Act (Cap 160), the judgment of the High Court in the succession cause is appealable only with leave, rendering the extension application an exercise in futility.
- 3.Whether the intended appeal is arguable – a factor the judge said weighed on his mind but which he declined to determine, as a single judge.
Key legal issues
#Whether an appeal from a decree of the High Court in its original jurisdiction in a succession cause requires leave under section 50 of the Law of Succession Act (Cap 160).
No leave is required: where what emanates from the High Court is a decree (as opposed to an order), the decree is appealable as of right.
Relying on section 50 of the Law of Succession Act, counsel for the respondent argued that the absence of leave rendered the application an exercise in futility. The judge rejected this: the use of the two distinct words 'decrees' and 'orders' in section 47 of the Act is significant, since a word such as 'decision' would have made the High Court's decision non-appealable altogether. Following Margaret Makhangu John and the Income Tax decision, he held that a decree emanating from the High Court's original jurisdiction in a succession cause is appealable as of right under section 66 of the Civil Procedure Act.
Whether the delay of almost 14 months in lodging the rule 4 application was excusable so as to warrant extension of time.
The delay was inordinate and unexplained; it disentitled the applicant to the exercise of the court's discretion under rule 4.
The judge separated two periods of delay. The delay in lodging the letter bespeaking copies of the proceedings and judgment was excusable, because the advocates then on record had filed no notice of appeal despite allegedly being instructed to do so. But the applicant's new advocates, having applied for the copies on 22 March 2001, waited almost fourteen months until 16 May 2002 before filing the application, and nothing was placed before the court to explain that gap. Unexplained inordinate delay disentitles an applicant to the rule 4 discretion, and the application was dismissed with costs.
Whether the intended appeal is arguable.
The judge indicated that the intended appeal was 'really not arguable' but declined to make a definitive finding, considering the point outside a single judge's province.
Although the judge identified the arguability of the intended appeal as a factor that weighed on his mind and stated that it was really not arguable, he expressly refrained from deciding the point, saying it did not fall within his province as a single judge. The dismissal therefore rested formally on the inordinate and unexplained delay rather than on any concluded finding that the appeal was unarguable.
Legal principles established
#- Where what emanates from the High Court in its original jurisdiction in a succession cause is a decree (as opposed to an order), the decree is appealable as of right and no leave to appeal is required under section 50 of the Law of Succession Act.
- An applicant under rule 4 of the Court of Appeal Rules must satisfactorily explain any inordinate delay in lodging the application; unexplained inordinate delay disentitles the applicant to the exercise of the court's discretion.
Court orders
#- 1.The application for extension of time to lodge the notice of appeal and the record of appeal is dismissed.
- 2.Costs of the application are awarded to the respondent and assessed at Shs.6,000/=.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (the 'Rules of this Court') – application for extension of time to lodge a notice of appeal and record of appeal out of time; the intended appeal is against a decree of the High Court in its original jurisdiction in a succession cause, appealable as of right under section 66 of the Civil Procedure Act
Relief refused
#Extension of time to lodge the notice of appeal and the record of appeal out of time
The 14-month delay in lodging the application was unexplained and inordinate, disentitling the applicant to the exercise of the rule 4 discretion; the judge also considered the intended appeal not arguable but declined to decide that point as a single judge.
Costs
The application was dismissed with costs to the respondent, which the judge assessed at Shs.6,000/=.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the circumstances I am constrained to dismiss this application which I do with costs. I assess these costs at Shs.6,000/=.
Whilst the delay in lodging the letter bespeaking copies of proceedings and judgment is excusable I have nothing before me to satisfy myself that the 14 month delay in lodging this application is excusable. That delay is, by any standards, inordinate.
The effect of the decision in the case of Margaret Makhangu John (supra) is that if what emanates fromt he High Court is a decree (as opposed to an 'order') in its original jurisdiction in a Succession Cause, the decree is appealable as of right.
However, as I have pointed out earlier, the unexplained delay of 14 months is inordinate. It disentitles the applicant the exercise of my discretion under rule 4 of the Rules of this Court.
Issues in the judgment
#The judgment text contains no case caption, party names or appeal number; caseTitle and caseNumber are descriptive placeholders.
The judgment contains a typographical error ('fromt he') within the passage carrying the appealability holding; verbatim quotes preserve it exactly as printed.
Internal tension: the judge asserts the intended appeal is not arguable while simultaneously disclaiming jurisdiction, as a single judge, to decide arguability.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Itotia Ng'ang'a vMary Wanjiku Kimaru [2002] KECA 152 (KLR)", Case Analysis (2002). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/152/eng@2002-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.