In re Estate of Owino Ondiegi (Deceased) [2024] KEHC 10632 (KLR)

In re Estate of Owino Ondiegi (Deceased) (Succession Appeal E005 of 2024) [2024] KEHC 10632 (KLR) (11 September 2024) (Ruling)

Neutral citation: [2024] KEHC 10632 (KLR)

Republic of Kenya

In the High Court at Kisumu

Succession Appeal E005 of 2024

RE Aburili, J

September 11, 2024

N THE MATTER OF THE ESTATE OF OWINO ONDIEGI – DECEASED

Between

John Wandaye Oyach

Appellant

and

Rose Owino

Respondent

((Being an appeal from Ruling/Orders of the Senior Principal Magistrate’s Court Citation Cause No. 211 of 2019 delivered at Nyando))

Ruling

1. This appeal is before me for admission. I have perused the Memorandum of Appeal dated 12th August 2024 and filed in court on 14th August 2024.

2. The said Memorandum of Appeal claims that the Ruling appealed against is the one delivered on 1st January 2021 in Nyando SPM Succession Cause No. 211 of 2019 by Hon. L. N. Kiniale, SPM.

3. I have perused the trial court file which is Citation Cause No. 211 of 2019. Hon. L.N. Kiniale delivered a Ruling after hearing an application for review of the Ruling of 1st April 2021 rendered by Hon. S. Temu, SPM. She did not deliver any Ruling on 1st April 2021.

4. Even if she did, there being the application dated 20th October 2022 seeking to set aside/review that Ruling of 1/4/2021 means that the Appellant herein could only appeal against the Ruling declining review and not the original Ruling since time for filing of the appeal against the Ruling of 1st April 2021 had lapsed.

5. Furthermore, the Ruling declining the prayers for review of the Ruling of 1st April 2024 was rendered on 20th June 2021 whereas this appeal was filed on 14th August 2024. I have not seen any application or order for extension of time for filing of the appeal as 30 days had lapsed when the appeal was filed

6. Whichever way, the purported appeal is incompetently filed before this court and is hereby summarily rejected and struck out with no orders as to costs.

7. The Appellant and Respondent to be notified forthwith.

8. The original lower court file and copy of this Ruling to be remitted to the trial court.

9. This file is closed.

10. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 11TH DAY OF SEPTEMBER, 2024R. E. ABURILIJUDGE