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Court of AppealDismissedNotice of Motion dated February 22, 2024 (Probate and Administration Cause No. E004 of 2021 appeal)

Kiteria & another v Kiteria (Civil Application E010 of 2024) [2024] KECA 755 (KLR)

Court of Appeal of Kenya
21 June 2024
1,440 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to extend time to file two probate appeals because the applicants explained no delay and filed no memorandum of appeal.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Malindi on a Notice of Motion dated February 22, 2024, in which Gibson Nyange Kiteria and Regina Manga Nyambo sought extension of time under rule 4 of the Court of Appeal Rules to file records of appeal out of time against two High Court rulings in Probate and Administration Cause No. E004 of 2021 (Mativo, J. of 21st September 2022 and Dulu, J. of 5th October 2023). The applicants argued that the delay was occasioned by the time taken to obtain certified proceedings, certificates of delay and leave to appeal, and contended (citing Taib vs. Said) that arguability is not a mandatory consideration at this stage. The court rejected that contention as a misconstruction, applied the four Leo Sila Mutiso factors, and found the grounds against the first ruling arguable. However, no memorandum of appeal was exhibited for the October 2023 ruling, so that limb failed on the first and decisive hurdle. As to the September 2022 ruling, although the notice of appeal was filed promptly and proceedings obtained without difficulty, the applicants took no steps for over one year and five months after obtaining the proceedings and certificate of delay, with no plausible explanation; the court further found the extension would prejudice the respondent by impeding administration of the estate. The Motion was dismissed in its entirety with costs to the respondent, who filed no reply or submissions.

Questions the Court framed

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

  1. 1.Whether the applicants should be granted extension of time under rule 4 of the Court of Appeal Rules to file records of appeal out of time against two High Court rulings, considering the length of delay, reason for delay, arguability of the intended appeals and prejudice to the respondent

Key legal issues

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01

Whether the intended appeal against the ruling of 21st September 2022 was arguable

Holding

The grounds challenging the revocation-of-grant ruling were arguable, but this alone did not entitle the applicants to extension of time given the inordinate unexplained delay.

Reasoning

The applicants faulted the judge for failing to find fraud in the obtaining of the grant, for holding all beneficiaries were present at confirmation, and for ignoring their long possession of the suit property. The court accepted these grounds as arguable but held that whether the appeal would succeed was not for it to judge; arguability had to be weighed against the unexplained delay and prejudice to the respondent.

p. 3
02

Whether the intended appeal against the ruling of 5th October 2023 was arguable

Holding

The application for extension of time on this limb failed because no memorandum of appeal was exhibited.

Reasoning

The applicants exhibited a memorandum of appeal only in respect of the September 2022 ruling. Without any memorandum for the October 2023 ruling, the court could not assess arguability or chances of success, and the applicants failed the first and decisive hurdle for rule 4 relief.

p. 3
03

Whether the delay in filing the record of appeal against the 21st September 2022 ruling was excusable

Holding

The delay of over one year and five months after obtaining the proceedings and certificate of delay was inordinate and unexplained.

Reasoning

The notice of appeal was filed promptly on the day of the ruling and proceedings were requested and obtained without apparent difficulty, with a certificate of delay issued on 23rd January 2023. Yet no steps were taken to file the record for over seventeen months, and no plausible explanation was offered. The court also found the extension would prejudice the respondent by impeding administration of the estate.

p. 3
04

Counsel's contention that arguability of an intended appeal is not a mandatory consideration in a rule 4 application

Holding

The court rejected this as a misconstruction of its earlier decision in Taib vs. Said.

Reasoning

Counsel had cited Taib vs. Said for the proposition that arguability is a matter for the full bench. The court clarified that the decision concerned the merits of applications for leave to appeal, not rule 4 extension applications, and proceeded to apply the established rule 4 factors including arguability.

p. 2

Legal principles established

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  • In rule 4 applications the court considers the length of delay, the reason for delay, the chances of the appeal succeeding, and the prejudice to the respondent; the discretion is unfettered and not confined to these factors.
  • A period of delay need not fall within fixed limits, but must be satisfactorily explained.
  • An applicant under rule 4 must demonstrate an arguable appeal; where no memorandum of appeal is exhibited, the application fails.

Court orders

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  1. 1.The Motion for orders to extend time to file the record of appeal against the ruling and orders dated 5th October 2023 is dismissed
  2. 2.The Motion for extension of time to file the record of appeal against the ruling and orders dated 21st September 2022 is dismissed
  3. 3.Costs of the Motion awarded to the respondent

The bench

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

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
Probate and Administration Cause No. E004 of 2021
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

Relief refused

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Extension of time to file the record of appeal against the ruling of October 5, 2023

No memorandum of appeal was exhibited to demonstrate that the intended appeal was arguable

p. 3

Extension of time to file the record of appeal against the ruling of September 21, 2022

Inordinate and unexplained delay of over one year and five months after obtaining the proceedings and certificate of delay, and prejudice to the respondent in the administration of the estate

p. 3

Costs

The application was dismissed with costs to the respondent.

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.

In determining whether to extend time, the Court takes into account: (i) the length of the delay; (ii) the reason for the delay; (iii) the chances of the appeal succeeding if the application is granted; and (iv) the degree of prejudice to the respondent if the application is granted.
p. 2Rule 4 extension of time - guiding factors
In principle, the discretion is unfettered, and there is no limit to the number of factors the court would consider so long as they are relevant.
p. 2Unfettered discretion under rule 4
the law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the Court's flow of discretionary favour.
p. 3Explanation of delay
the applicants' Motion does not satisfy the requirements for grant of orders under rule 4 of this Court's Rules. The same fails and is hereby dismissed with costs to the respondent.
p. 3Final orders - dismissal

Issues in the judgment

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minor

The judgment states the first ruling was delivered on 21st September 2022 but elsewhere records it as 21st October 2022

minor

The cited case name appears garbled in the judgment, mixing 'Ashit Patani & 2 others vs. Dhirajial' with 'Patani & 2 others'

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, "Kiteria & another v Kiteria (Civil Application E010 of 2024) [2024] KECA 755 (KLR)", Case Analysis (2024). Notice of Motion dated February 22, 2024 (Probate and Administration Cause No. E004 of 2021 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/755/eng@2024-06-21

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