Ndung'u (Suing as the Legal Representative of the Estate of Kibui Gatua (DCD)) v Gatua [2022] KEHC 11229 (KLR)

Ndung'u (Suing as the Legal Representative of the Estate of Kibui Gatua (DCD)) v Gatua (Miscellaneous Civil Application 15 of 2022) [2022] KEHC 11229 (KLR) (15 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11229 (KLR)

Republic of Kenya

In the High Court at Embu

Miscellaneous Civil Application 15 of 2022

LM Njuguna, J

June 15, 2022

Between

Ann Njoki Ndung'u

Applicant

Suing as the Legal Representative of the Estate of Kibui Gatua (DCD)

and

Muriuki Gatua

Respondent

Ruling

1. Before this court is the notice of motion dated 08. 04. 2022 brought under Rules 49, 73 of the Probate and Administration and Section 79 G of the Civil Procedure Act wherein the applicant seeks for orders that:i.The applicant be granted leave to file an appeal out of time against the ruling delivered on 20. 12. 2021 in Embu CM’s Succession No. 69 of 2016. ii.There be no order as to Costs.

2. The application is premised on the grounds on its face and further supported by the affidavit sworn by the applicant herein. The applicant’s case is that judgment was delivered in the absence of the parties whereby her application was dismissed. That the ruling having been delivered on 20. 12. 2021, she only came to learn of the same, sometimes in the month of March, 2022 and that the 30 days period within which she ought to have appealed had lapsed. It is her case that she has a good appeal with chances of success and that the delay in filing the appeal is not deliberate and the same is not inordinate. She depones that she filed summons for revocation of grant on the basis that the same was obtained fraudulently by making of a false statement or by concealment of something material but the trial court instead dismissed the same. She therefore urged this court to allow her to file appeal out of time.

3. The respondent opposed the application by filing a replying affidavit sworn on 17. 05. 2022 citing among other reasons that the applicant is guilty of laches in filing the application herein; that the applicant has not shown any probable, sufficient and /or justifiable cause why she did not file an appeal within the stipulated statutory period. It is his case that the applicant extracted a copy of the order dated 21. 02. 2022 from the ruling which means that she was all through aware of the same. Further, it is contended that the applicant has not annexed any memorandum of appeal in her bundle of documents to enable this court decipher whether the intended appeal has any possible chance of success.

4. Directions were given that the application be canvassed by way of written submissions. The applicant submitted that indeed she filed summons for revocation of grant but the learned magistrate dismissed the application. That the said ruling was delivered in her absence and she was not notified of the date so that she could appear before the court given that she represented herself then. She submitted that when she finally learnt of the ruling, she immediately instructed her counsel to seek leave to appeal against the ruling by the trial magistrate. That for the reasons given hereinabove, she was unable to file the appeal on time. It is her case that she has an arguable appeal as she stands to be disinherited from the estate of his father by the respondent who is a brother to the deceased and so, it would only be fair that this application be allowed. Reliance was placed on the cases of In re estate John Maganga Okwaro (Decaesed) [2022] eKLR andMwangi v Kenya Airways Ltd [2003] eKLR.

5. The respondent on the other hand submitted that the applicant did not file the intended appeal in time and that the merits and demerits of the applicant’s application is pegged on Section 79G of the Civil Procedure Act, which requires that he shows a ‘good and sufficient cause’ for the delay. It is his case that the delay herein is not reasonable or justifiable given that the matter has been in court for the last seven years and the intended appeal is not deserved. He further submitted that the orders were extracted from the ruling on 21. 02. 2022 and this is enough evidence that the applicant was aware of the ruling. That the applicant has not annexed a draft memorandum of appeal to enable the court decipher the grounds upon which the appeal is hinged and its chances of success. It was submitted that the applicant has not applied for typed proceedings even after becoming aware of the ruling. The respondent reiterated that the applicant has not given satisfactory reason why this court should exercise its discretion. Reliance was placed on the case of Nairobi civil Application no. 151 A of 2018 – Allan Nyaga Gathuri Ngari v Gaturi Ngari.

6. I have considered the application, the response and the submissions filed herein.

7. When it comes to appeals from the subordinate court to the High Court, the applicable provision is Section 79G of the Civil Procedure Act which expresses that appeals of such nature must be filed within a period of 30 days from the date of the decree or order from which the appeal lies. The proviso to the said section however allows for extension of time to appeal where good and sufficient cause has been shown.

8. Section 95 of the Act further bestows this court with discretion to enlarge time. The said section provides as thus;-“95. Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”

9. The principles upon which the court should exercise discretion and grant leave to appeal out of time are now settled. The court should take into account the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted and the degree of prejudice to the respondent if the application is granted. (See Leo Sila Mutiso v Rose Hellen Wangari Mwangi - Civil Application No. NAI 255 of 1997 (unreported) and Thuita Mwangi v Kenya Airways Limited [2003] eKLR.

10. As such, extension of time within which an appeal ought to be filed is a matter of judicial discretion. An applicant seeking enlargement of time to file an appeal must show that she has a good cause for doing so.

11. The question therefore is whether the applicant has satisfied the above conditions.

12. As for the length of the delay, it is not disputed that the ruling of the trial court was delivered on 20. 12. 2021 and from the records, an order was extracted on 21. 02. 2022. The application herein was filed on 08. 04. 2022 which is slightly over three (3) months from the date of the said ruling. In the case of Jaber Mohsen Ali & Another v Priscillah Boit & Another E & L No. 200 of 2012 {2014} eKLR the Court stated that what is unreasonable delay is dependent on the circumstances of each case. Even one day after Judgment/Ruling could be unreasonable delay depending on the Judgment/Ruling of the Court and any order given thereafter.

13. In the circumstances of the instant case, the applicant has given reasons for the delay and which she has urged this court to have in mind when considering the application. Though from the record, it is not clear whether the applicant has already applied for copies of typed proceedings since no evidence has been attached to the documents herein for the intended appeal and in reference to that, I am in agreement with the respondent that such piece of evidence was proper to prove that she has indeed applied for typed proceedings before the trial court to enable her file the intended appeal. In the case of Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet[2018]eKLR, the court was of the view that:“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. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.”

14. In putting her case forward, the applicant has submitted that she represented herself in the lower court and that she learnt of the ruling in the month of April, 2022 and thus she proceeded to instruct a counsel to represent her in the matter herein.

15. I am guided by the Court of Appeal decision in Vishva Stone Suppliers Company Limited v RSR Stone [2006] Limited [2020] eKLR (Nambuye J.A) while quoting with approval the case of Richard Nchapi Leiyagu v IEBC & 2 Others (supra); Mbaki & Others vs. Macharia & Another [2005] 2EA 206 and the Tanzanian case of Abbas Sherally & Another v Abdul Fazaiboy, Civil Application No. 33 of 2003, right to be heard is not only constitutionally entrenched but it is also the corner stone of the Rule of law; a valued right; and is so basic that a decision which is arrived at, in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because, the violation is considered to be a breach of natural justice.

16. As for the chances of the intended appeal succeeding, I have perused the draft memorandum of appeal. It is trite that in deciding whether an appeal is arguable or not, the court is bound to consider whether the said intended appeal raises a bona fide issue for determination by the Court. For the intended appeal to be termed as arguable, all that is needed in Law is that there be even one arguable point and that will suffice [See Commissioner of Customs v Anil Doshi, {2017} eKLR ; Joseph Gitahi Gachau & Another v Pioneer Holdings (A) Ltd. & 2 others, Civil Application No. 124 of 2008].

17. I have perused the ruling by the trial court, subject of the intended appeal and further the grounds on the draft memorandum of appeal. It is clear that the intended appeal arises from a succession cause. It is trite that in deciding whether an appeal is arguable or not, the court is bound to consider whether the said intended appeal raises a bona fide issue for determination by the Court .The applicant therefore has urged this court to consider the fact that the law in regards to the application of the word ‘child’ in reference to section 29 the Law of Succession Act was not complied with and as such, the appeal herein should be allowed. In my view, the issues raised by the applicant are arguable; however it is essential to note that an arguable appeal does not necessarily mean an appeal that will or must succeed.

18. As for the prejudice which the respondent stands to suffer should leave be granted for the applicant to file an appeal out of time, from the respondent’s replying affidavit, I did not come across any credible evidence to indicate the prejudice that would befall him, that cannot be compensated by way of costs and especially considering the averments by the applicant in her supporting affidavit that she stands disinherited while she is rightfully entitled to the estate herein given that the deceased is her father. It should be noted that the right to be heard is provided for in our constitution. The applicant having expressed her intentions to be heard on appeal, it is paramount that she be granted the said opportunity.

19. As I have already stated, extension of time to file appeal is a matter of exercise of judicial discretion. Where a party is aggrieved and wishes to pursue an appeal it would be fair to exercise discretion in her favour and especially where the delay in filing the appeal has been satisfactorily explained. Discretion of the court must always be exercised judiciously and that the applicant having expressed her intentions to be heard by this court on appeal and in the given circumstances, it is my considered view that an opportunity should be availed to her to ventilate her issues.

20. In the end, it is my considered view that in the interest of justice, the application should be allowed and I hereby allow the same and make the following orders;i.That leave be and is hereby granted to the applicant to file appeal out of time.ii.That the appeal be filed within 21 days from the date of this ruling. Thereafter, the applicant to file and serve the Record of Appeal within 30 days from the date of filing of the appeal.iii.That the cost of the application shall abide the outcome of the appeal.

21. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 15TH DAY OF JUNE, 2022. L. NJUGUNAJUDGE……………………………………for the Applicant……………………………………for the Applicant