Mwitu v Muthamia [2022] KEHC 12564 (KLR)

Mwitu v Muthamia (Succession Cause 619 of 2015) [2022] KEHC 12564 (KLR) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12564 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 619 of 2015

PJO Otieno, J

June 17, 2022

IN THE MATTER OF THE ESTATE OF MARTIN MIRITI MUKIRA (DECEASED)

Between

Janet Mwitu

Petitioner

and

Benjamin Murerwa Muthamia

Protestor

Ruling

1. By a Chamber Summons application dated 2nd February, 2022, the protestor/applicant seeks in the main orders that; the Honourable Court be pleased to grant leave to lodge a Notice of Appeal against the ruling delivered on 17th December 2021 out of time and that the costs of this application be provided for.

2. The application is premised upon Section 47 of the Law of Succession Act, cap 160 Laws of Kenya and Rule 76 of the Probate and Administration Rules and grounds disclosed on its face and in the supporting Affidavit of Benjamin Murerwa Muthamia sworn on 2nd February, 2022. the summary of the grounds are that this court delivered a ruling on 17th December, 2021 dismissing a protest by the applicant herein and confirming the grant as per the mode of distribution proposed by the petitioner. The protestor is dissatisfied with the ruling of this court and argues that he was deprives him of a portion of land measuring 1 acre in the parcel of land known as Lr No. Abothuguchi/u-kaongo/1380 he claims to have bought from the deceased.

3. The reason advanced by the protestor/applicant for failing to file an appeal on time is that his previous advocate did not inform him of the time limit imposed by statute to challenge a ruling.

4. The petitioner did not file a response to the application but counsel was permitted by court to submit on points of law as the matter was urged orally without any written submissions.

5. When parties addressed the court orally, the applicant’s counsel told the court that the reason for delay was the delivery of the ruling in the absence of parties and due to failure to issue notice of delivery which in turn made the advocate not to inform the applicant. It was then contended that the applicant only came to know about the ruling in the course of last week of January 2022 on an undisclosed date. He then added that no prejudice would be occasioned to the respondent of the application is allowed as prayed.

6. For the respondent, submissions were made to the effect that the appeal had no iota of prospects of ever succeeding and the court could not assess the prospects of success as no grounds of appeal had been disclosed.

7. Counsel for the respondent then added that there was no automatic right to appeal and therefore it was futile to grant extension of time when there is no right to appeal without leave to appeal. In the end the counsel told the court that any further litigation in the matter was bound to visit great prejudice upon the respondent who is very elderly and is entitled to enjoy the fruit of her litigation so far.

8. In a rejoinder to the opposition, counsel for he applicant asserted that his client had the right of appeal being a beneficiary of the estate

Issues Analysis and Determination 9. Having perused the application, the record and the submissions offered by both sides, the Court discerns only one issue to arise for determination by the court. The issue is whether the Protestor/Applicant ought to be granted extension of time to lodge a Notice of Appeal against the ruling delivered on 17th December, 2021 out of time then the incidental issue of what orders be made as to costs

10. The rationale of statutory timelines is to ensure efficient administration of justice in line with the constitutional dictate that justice shall not be delayed. Ordinarily, the consideration for extension of time is whether the delay has been explained to the satisfaction of the court provided it is not inordinate. That however is in situations where one has a right of appeal but was unable to appeal in time. Here it is contended that there is no right of appeal hence before the court considers whether to extend time on the applicable principles, it must first determine if in deed there exist the liberty to appeal.

11. The right to appeal must be given by statute for not every decision merits approaching the next court. As envisaged in the civil procedure act and rules, the application of the Civil Procedure Rules in probate matters is limited to instances stipulated in Rule 63 of the Probate & Administration Rules. This thus means that there is no automatic right to appeal in probate matters. However, for a party to appeal against the decision of the High court in a probate matter, they ought to first obtain the leave of the court. This was the holding of the Court of Appeal in the case of Rhoda Wairimu Karanja & Another v Mary Wangui Karanja & Another [2014 eKLR where it was observed as follows: -“We think we have said enough to demonstrate that under the Law of Succession Act, there is no express automatic right of appeal to the Court of Appeal; that an appeal will lie to the Court of Appeal from the decision of the High Court exercising original jurisdiction with leave of the High Court or where the application for leave is refused, with leave of this court. Leave to appeal will normally be granted where prima facie it appears that there are grounds which merits serious consideration. We think this is good practice that ought to be retained in order to promote finality and expedition in the determination of probate and administration disputes.”

12. The above decision has been echoed by the Court of Appeal in John Mwita Murimi & 2 others v Mwikabe Chacha Mwita & Another [2019] eKLR where the court held: -“…Under the Law of Succession Act, there is no express automatic right of Appeal to the Court of Appeal from the decision of the High Court exercising original jurisdiction without leave of the High Court or where the application for leave is refused with leave of the court….”

13. This court while being cognisant of the provisions of section 47 of the Law of Succession Act which vests it court with wide powers to hear any application and grant such orders as it deems fit, is equally bound by the principles of stare decisis and holds that the unfettered powers do not include grant extension of time to appeal before leave to appeal is granted.

14. Despite the wide powers given to this court by virtue of section 63 of the Law of succession Act and rule 76 of the Probate & Administration Rules, those must be seen to be general provisions to serve where there be no specific provision. On matters of appeal on probate matters, it is clear that there is a right of appeal from the subordinate court to this court but no equivalent provision for appeals to the Court of Appeal. I do find that there is no right of appeal and that the applicant needs leave to appeal before seeking extension of time.

15. Flowing from the above discussion, any party dissatisfied with a decision of the high court and desires to approach the court of appeal needs to seek the leave of the court to file an appeal. That said, the orders sought by the Applicant would not therefore serve any meaningful purpose in law and the administration of justice. It would be superfluous to extend time when there is no right of appeal for an appeal so file would thus be incompetent.

16. Accordingly and for the reasons set out above, this court finds no merit in the applicant’s application dated 2nd February, 2022 and the same is thus dismissed with no order as to costs.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, ONLINE, THIS 17DAY OF JUNE 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for the PetitionerNo appearance for the Protestor/ApplicantCourt Assistant: Mwenda