In re Estate of M’Rutere M’Mugikwa alias Rutere Andrew (Deceased) [2017] KEHC 1935 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 296 OF 2001

IN THE MATTER OF THE ESTATE OF M’RUTERE M’MUGIKWA alias RUTERE ANDREW (DECEASED)

HARRIET NTIIRA RUTERE …………… PETITIONER/APPLICANT

VERSUS

LUCY NKANDI KIRIMI ………… ADMINISTRATOR/RESPONDENT

R U L I N G

1. By its Judgment delivered on 11th May, 2017, this Court revoked the grant issued to the applicant on 7th May, 2012, appointed the respondent as the new administratix of the late M’Rutere M’Mugikwa and confirmed the grant as had been originally confirmed on 7th November, 2003. The Court also directed that the new administratix do take steps to finalise the administration of the estate within six (6) months.

2. By a Summons in Chambers taken out on 7th July, 2017, the applicant applied for extension of time within which to give notice of intention to appeal against that judgment, wrongly referred to therein as ruling. The Summons were expressed to be brought under Section 47 of the Law of Succession Act, Rule 73 of the Probate and Administration Rules and section 7 of the Appellate Jurisdiction Act, Cap 9 of the Laws of Kenya.

3. The grounds for the application were contained in the body of the Summons as well as the supporting affidavit of the applicant. It was contended that when the  impugned decision was made, the applicant was not informed in good time to enable her furnish instructions to her advocate; that it was therefore not possible to file the notice of appeal on time and that the application was being made at the earliest opportunity.

4. In her supporting affidavit, the applicant complained that she was seriously aggrieved by the subject decision in that, it denied her the matrimonial home that was previously registered in her joint names with the deceased; that she had previously applied to rectify the grant and correct anomalies which the decision had now unsettled and that she was not able to get the copy of the decision in time to enable her give instructions to her advocate. She further stated that her advocate had now read and explained the decision to her and she feels aggrieved thereby. She therefore sought leave of court to appeal out of time.

5. In his submissions, learned Counsel for the applicant submitted that the applicant was not present when the impugned decision was made; that it took some time before the judgment was availed to the applicant’s counsel for him to seek instructions; that by the time the judgment was accessed, the 14 day period given for lodging an appeal had expired and that in the circumstances the delay had been explained.

6. Counsel further submitted that the replying affidavit of the respondent contained issues that were irrelevant to the application; that as the surviving widow of the deceased, the applicant should be allowed to challenge the judgment. The authorities of Abdi Nuru Omar & Anor T/A Delta Haulage Services Ltd  vs. Mohamed Aden Abdi KSM CA. No. Nai. 75 of 2008 (UR)and Anastasius H. Kamau vs. Karen Insurance Brokers Ltd NBI CA. No. Nai 210 of 2007 (UR)was relied in support of those submissions. Counsel urged the court to allow the application.

7. The application was opposed vide a replying affidavit of Lucy Nkandi Kirimi sworn on 18th July, 2017. It was contended therein that, court had found the applicant to have been dishonest in the administration of the estate; that there was inordinate delay in bringing the application; that no explanation had been proffered for the failure to file a notice of appeal; that the applicant had not applied for proceedings or copy of the judgment. To the respondent, the appeal had no chances of succeeding and the application was but an afterthought.

8. In his submissions, Counsel for the respondent submitted that there was a delay of close to two months which had not been explained. That the applicant was represented by an advocate at the time the judgment was read and she did not require a copy of the typed judgment before filing a notice of appeal. Counsel urged that the application be dismissed.

9. I have carefully considered the affidavits on record, the submissions of counsel and the authorities relied on. I have also considered the entire record. This is an application for leave to appeal out of time to the Court of Appeal. The principles applicable for such an application are akin to those applicable under Rule 4 of the Court of Appeal Rules.It has been held by that Court that in exercising its discretion under Rule 4,the court will consider the length of the delay, the reasons for the delay, the chances of succeeding if the application is allowed and the degree of prejudice to the respondent if the application is granted See Patel vs. Waweru and 2 Others [2003] KLR 361 at pg. 362.

10. On the length of the delay, the impugned judgment was delivered on 11th May, 2017. The present application was lodged in court on 10th July, 2017. That was a delay of two months. To this Court’s mind, that delay was inordinate. This is so considering that timelines in taking steps in matters litigation are geared towards achieving the Constitutional principle that justice should be dispensed without delay.  In this regard, the said delay called for an explanation.

11. What is the explanation proffered by the applicant? This is to be found in paragraphs 5, 6 and 10 of the supporting affidavit:-

“5.   That I was not able to get a copy of the Ruling on time to enable me read and appreciate the outcome to enable me give my advocate instructions.

6.  That I am therefore dissatisfied with the said Ruling and now apply for leave from this honourable court to lodge the Notice of Appeal and pursue the appeal.

10. That my lawyer has now read and explained the content of the Ruling and Orders to me which have aggrieved me seriously?”

12. From the foregoing, the reason advanced by the applicant for the delay in filing the Notice of Appeal is that she was not able to get a copy of the Ruling within time. The question that lingers for answer is; was it mandatory that the applicant should have had a copy of the judgment for her to draw and lodge the said notice. I don’t think so. A notice of appeal is a mere notification which a litigant lodges in the superior court expressing his or her dissatisfaction with a particular decision and his or her intention to appeal against that decision. One does not require to see or have a copy of that decision to do so. All one needs is to know the outcome of a decision.

13. In the present case, the record shows that on 10th April, 2017, counsels for both parties were in court when the date for judgment was reserved for delivery on 11th May, 2017. On the date of delivery, the advocate for the respondent appeared while that of the applicant did not. There was no reason proffered for the failure to attend.  The court thereupon recorded as follows:-

“Judgment read and delivered in open court in the absence of Counsel for the Petitioner who had notice of the judgment date. File closed”.

14. In this regard, while the applicant and or her advocate knew the date of delivery of judgment, they chose not to attend court on that date. In any event, it is not the applicants case that she did not know of the delivery of the judgment.  Even if that were to be the case, the applicant still did not explain in her affidavit when she first knew of the outcome of that judgment. In my view therefore, the delay was inordinate and no reasons or any good reason has been given for that delay.

15. This court appreciates that a litigant should be given as much chance as possible to litigate and or ventilate his or her case up to the highest court possible without hindrance whatsoever. This is in consonance with the constitutional principles of the right to access to justice and that justice should be dispensed with without undue regard to technicality as enunciated in Articles 48 and 159 (2) (d) of our Constitution.However, those rights must be exercised within the confines of the law. Where rules of court stipulate the procedure to be followed, that procedure should be adhered to as far as practically possible for they are said to be handmaidens of justice.

16. While considering an application for extension of time under Rule 4 of the Court of Appeal Rulesand the importance of rules of court in the administration of justice in the case of Anastasius Kamau vs. Karen Insurance Brokers Limited (supra), the court stated:-

“Counsel for the applicant concedes to the delay which he does not specifically address. To this extent, I must say that Rules of the Court must be complied with, as was said in RATMAN vs. CAMARASAMY [1964]  3 ALL ER 933, by Lord Guest at page 935,

“The Rules of Court must prima facie, be obeyed and in order to justify the court extending the time during which some step in procedure requires to be taken there must be material on which the Court can exercise its discretion. If the law were otherwise a party in breach would have an unqualified right to an extension of time, which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation …”

17. To my mind, the timelines set by the rules are meant to expedite the determination of cases.  That is in line with the Constitutional principle that justice should be dispensed without undue delay.  In the circumstances of this case, this Court finds that the delay was inordinate and the same has not been explained.

18. As regards the chances of the appeal succeeding if the application is allowed, I do not think that this court is in a position to decide on that aspect. Since it is its decision that is being challenged, it is only the Court of Appeal that can delve into that issue.

19. As regards prejudice, the respondent did not indicate what prejudice she will suffer if the application was allowed. However, this court is alive to the principle that, justice delayed is justice denied; that there has to be an end to litigation and the requirement in Article 159 (2) (b) of the Constitutionthat justice should be dispensed with without undue delay. This is a Succession Cause for the estate of the late M’Rutere M’Mugwika who passed on in November, 1999. The grant was properly confirmed in 2003. The estate is yet to be fully administered 14 years later. The justice of the case requires that the same be finalized at the earliest. In this regard, allowing the application will be to elongate and compound the problem. The earlier it is brought to an end the better.

20. For the foregoing reasons, I find that the application is without merit and the same is hereby dismissed with costs.

DATEDand DELIVERED at Meru this 9th day of November, 2017.

A. MABEYA

JUDGE