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Court of AppealAllowedCivil Appeal No. 178 of 2004 (application dated 30th March 2007)

MARY WANJIRU KIARIE v MARY WANJIKU KIARIE [2008] KECA 238 (KLR)

Court of Appeal of Kenya
15 February 2008
WDW. S. Deverell
804 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a widow a second chance to file her appeal after a court office error caused a nearly three-year delay.

What this practically means

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Executive summary

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This is a ruling by W. S. Deverell, JA, sitting as a single judge under rule 4 of the Court of Appeal Rules, on an application dated 30th March 2007 by Mary Wanjiru Kiarie for extension of time to file a fresh Notice and Record of Appeal in Civil Appeal No. 178 of 2004. The original notice and record had been struck out because of an incurable defect in the record: an order issued by the High Court Deputy Registrar on 21st July 2004 described Wanjiru as the objector in Succession Cause No. 82 of 2002 when she was in fact the petitioner, the objector being Mary Wanjiku Kiarie. The corrected order was only issued on 6th March 2007, producing a delay of roughly two and three quarter years. The underlying succession cause concerned the estate of Francis Kiarie Ndirangu, who died on 7th December 2001. In a judgment delivered on 26th March 2004, Koome J found that the objector was a wife of the deceased under Kikuyu customary law, that her children were the deceased's children, and that letters of administration should issue jointly to both women with their children as beneficiaries, with each party bearing their own costs. Wanjiru challenged the finding that Wanjiku was a wife and beneficiary. Finding the delay adequately explained by the Registrar's error and counsel's failure to notice it, and noting the respondent's non-opposition, the single judge granted leave to file and serve a fresh Notice of Appeal and a fresh Record of Appeal within fourteen days, with the costs of the application to be in the intended appeal. This is a case-management decision of a single judge, not a binding panel determination on the merits; it does not disturb the High Court judgment, which will fall for consideration 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 should be granted an extension of time to file a fresh Notice and Record of Appeal to replace those struck out due to a defect in the High Court order
  2. 2.Whether the delay of about two and three quarter years is adequately explained

Key legal issues

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01

Extension of time to file a fresh Notice and Record of Appeal where the record was struck out for an incurable defect originating in a Deputy Registrar's order

Holding

Extension granted; the delay was explained by the Deputy Registrar's error in describing Wanjiru as the objector rather than the petitioner, an error not noticed by the Registrar, the appellant or her advisors, and corrected only on 6th March 2007.

Reasoning

The court considered the length of delay (about two and three quarter years), the reason for it (the Registrar's defective order of 21st July 2004 and counsel's failure to notice the error immediately), the confusingly similar names of the parties, and the fact that the respondent did not oppose the application. Balancing these factors, the single judge exercised an unfettered but judicious discretion in favour of granting the extension so the intended appeal could be heard on its merits.

p. 2

Legal principles established

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  • The single judge's discretion under rule 4 to extend time is unfettered but must be exercised judiciously; the confusing similarity of party names and the non-opposition of the respondent supported the grant.

Court orders

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  1. 1.Leave granted to the applicant to file and serve a fresh Notice of Appeal against the judgment of Martha Koome J. dated 26th March 2004 in Succession Cause No 82 of 2002 within fourteen days after delivery of the Ruling
  2. 2.Leave granted to the applicant to file and serve a fresh Record of Appeal within fourteen days after delivery of the ruling
  3. 3.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.

WD
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
Succession Cause No. 82 of 2002
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (single judge jurisdiction to extend 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.

THAT leave is hereby granted to the applicant to file and serve a fresh Notice of Appeal against the Judgment of Martha Koome J. dated 26th March 2004 in Succession Cause No 82 of 2002 within fourteen days after the delivery of this Ruling.
p. 2final orders - extension of time for fresh Notice of Appeal
THAT leave is hereby granted to the applicant to file and serve a fresh Record of Appeal within fourteen days after the delivery of this ruling.
p. 2final orders - extension of time for fresh Record of Appeal
THAT the costs of this application shall be in the intended Appeal.
p. 2final orders - costs
in the exercise of my unfettered discretion as a single judge which discretion is to be exercised judiciously, that this is a proper case in which to grant the extension of time sought by the applicant
p. 2judicial discretion under rule 4
The defect was the reference, in the order issued by the High Court Deputy Registrar on 21st July 2004, to Wanjiru as being the objector to the petition in Succession Cause No. 82 of 2002 whereas in fact Wanjiru was the Petitioner in the Succession Cause and the Objector was Wanjiku.
p. 1nature of the defect excusing the delay

Issues in the judgment

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minor

The judgment refers to 'the applicant Wanjiku' when describing the succession cause, although the applicant on the extension application is Wanjiru and Wanjiku is the respondent; the two parties bear confusingly similar names.

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, "MARY WANJIRU KIARIE v MARY WANJIKU KIARIE [2008] KECA 238 (KLR)", Case Analysis (2008). Civil Appeal No. 178 of 2004 (application dated 30th March 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/238/eng@2008-02-15

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