Agnes Tirindi Kiara v Violet Kagwiria, Pamela Kagwiria & Penninah Kathure [2019] KECA 685 (KLR)

IN THE COURT OF APPEAL

AT NYERI

[CORAM: KANTAI, JA IN CHAMBERS]

CIVIL APPLICATION NO. 106 OF 2018

BETWEEN

AGNES TIRINDI KIARA.......................APPELLANT

AND

VIOLET KAGWIRIA.................. 1ST RESPONDENT

PAMELA KAGWIRIA.................2ND RESPONDENT

PENNINAH KATHURE.............. 3RD RESPONDENT

(An application for extension of time to file and serve a record of appeal out of time from the judgment delivered on 1st February, 2018 by A. Mabeya, J,

IN

MERU SUCCESSION CAUSE NO. 499 OF 2015)

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R U L I N G

The applicant Agnes Tirindi Kiara by  a Motion on Notice broughtunder Rule 4 of the rules of this Court prays that I be pleased to  extendtime to enable her file and serve record of appeal out of time against thejudgment delivered by the High Court of Kenya at Meru on1stFebruary,2018in a Succession Cause. In grounds in support and in an affidavit swornby the applicant on22ndAugust, 2018, it is statedinter aliathat theapplicant is the mother of the lateJulius Kiragu Kiarawho died in the year2015; that the applicant had filed a Succession Cause in respect of the estateof her deceased son; that the respondentsViolet Kagwiria, Pamela KagwiriaandPenninah Kathurehad protested against grant of letters ofadministration claiming to be children of the deceased; and that after ahearing the High Court had revoked the grant in favour of the applicantbut ordered that the same be re-issued jointly to the applicant and the 1st and 2ndrespondents. Further, that the applicant had filed and served aNotice of Appeal respectively on6thand 7thFebruary, 2018but thatsubsequent to that filing she started ailing until July, 2018 when her healthimproved.  She further depones that during her illness she was unable tokeep contact with her lawyer who did not file a record of appeal. She hasattached to the motion a Notice of Appeal and some correspondence toshow episodes of her illness. There is also a draft Memorandum of Appealattached to the application.

The respondents did not file an affidavit in reply.

The motion came up for hearing before me on25thof March, 2019whenMr Gikonyo Mwangiadvocate appeared for the applicant whileMrGichunge Muthuriadvocate appeared for the respondent.

Mr. Mwangireferred me to the letter from Consolata Hospital,Nkubu, and a letter from County Government of Meru Department ofHealth to support his submission that the applicant had  health problemshence unable to file record of apeal. According to counsel for the applicantthe intended appeal is arguable as the respondents were not, according tocounsel, entitled to be administratrix of the estate of the deceased.

In opposing the motion Mr Gichunge submitted that the applicanthad not followed the timelines set out in the Rules of this Court. Accordingto counsel the applicant had no role to play in filing an appeal becasue shehad a lawyer on record. Counsel also complained that he had not beenserved with letter bespeaking proceedings.

I have considered the motion and the submissions made and this iswhat I think about this matter.

The exercise of power to extend time is discretionary and the factorswhich guide a Judge in considering such an application are not exhaustivebut some were recognized in the case ofMutiso vs. Mwangi Civil AppealNo. 255 of 1997where the following passange appears:

''It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: firstly, the length of the delay; secondly, the reason for the delay; thirdly, (possibly), the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted''

Has delay in this matter been explained?Judgment of the High Court was delivered on1stFebruary, 2018anda Notice of Appeal was lodged on6thFebruary, 2018. That Notice of Appealwas lodged and served within time. It is explained on behalf of theapplicant that she fell ill and was unable to instruct her lawyer to file arecord of appeal. I note from a medical report of Consolata Hospital Nkubudated15thSeptember, 2016byDoctor Brian Maretethat the applicant washis client who suffered hypertension.Doctor Guantai Koomeof MeruTeaching and Referral Hospital within the County Government of Meruwrote a report dated25thJuly, 2018stating amongst other things that theapplicant then aged 82 years had been a patient on follow-up at thathospital suffering some health problems. The applicant requests me toconsider her state of health as the contributing factor for the delay. On thisaspect and in view of medical evidence availed I am satisfied that theapplicant who filed Notice of Appeal timeously was incapacitated by somehealth issues and was unable to instruct her lawyer to file record of appealon time. So delay is explained.

On whether the proposed appeal has any chances of success  I haveperused the draft Memorandum of Appeal annexed to the application.  Itis  stated  amongst  other  grounds  that  the  Judge  erred  in  failing  toapppreciate that the respondents had not proved dependency orrelationships that would entitle them to be beneficiaries of the estate of thedeceased person. It is also taken as a ground that the Judge failed toappreciate that official government records had proved that therespondents were not children of the deceased. I think these are notfrivolous grounds. They are arguable. I do not think in the circumstancesthat the respondents are prejudiced if I grant leave.

In the circumstances I allow the Notice of Motion dated22ndAugust,2018. The applicant shall file and serve record of appeal within thirty (30)days of today. Costs of the motion will abide the outcome of the intendedappeal.

DATED & delivered at Nairobi this 5thDay ofApril, 2019.

S. ole KANTAI

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JUDGE OF APPEAL

I certify that this is atrue copy of the original.

DEPUTY REGISTRAR