Automated Summary
Key Facts
The case involves Irene Cherotich and Mary Chepkirui (joint administrators of the estate of Kipsoi Arap Kenduiwo) seeking leave to appeal out of time against a 2019 ruling on the estate's distribution. They filed an application for review on 28/3/2017, which was dismissed on 21/8/2019, and now argue that their delay was due to following legal advice. The court granted leave to appeal out of time, citing good cause and the need to resolve family wealth distribution issues without prejudice to the respondents (Wesley Kipkuri, Kiprono Bii, and Kipngeno Andrew Bii). The appeal must be filed within 30 days of the 18/3/2022 ruling.
Deceased Name
Kipsoi arap Kenduiwo
Issues
- Whether an appeal lies where an application for review has been dispensed with, and if the legal principles permit simultaneous filing of a review and appeal or require sequential procedures under the Civil Procedure Act.
- Whether the applicant should be granted leave to appeal out of time, considering the delay caused by filing an application for review instead of an appeal, and whether the court has jurisdiction to allow such an application under the Civil Procedure Act.
Holdings
- The court emphasized that the applicants must file the appeal within 30 days of the ruling and warned that failure to do so would result in the execution of the confirmation certificate. The cost of the application was also tied to the outcome of the appeal.
- The court granted leave to appeal out of time to the applicants, finding that they provided good and sufficient cause for the delay. The applicants had initially filed an application for review, which was dismissed, and the court ruled that their mistake in not directly appealing should not prejudice them, especially since the case involves family wealth distribution and no prejudice to respondents was demonstrated.
- The court determined that an appeal may be filed after a review has been dispensed with, affirming the applicants' entitlement to lodge the appeal. This aligns with the Civil Procedure Act provisions and the interest of justice in resolving disputes over family estate distribution.
Remedies
- Costs of the application are to abide the outcome of the appeal.
- If the appeal is not filed within 30 days of the ruling, the certificate of confirmation is to be executed.
- Leave to appeal out of time granted to the applicants, with the appeal required to be filed within 30 days of the ruling date (18th March 2022).
Probate Status
Contested estate succession with leave to appeal granted out of time
Legal Principles
The court relied on sections 79(G) and 95 of the Civil Procedure Act to grant leave to appeal out of time, emphasizing the court's discretion to allow appeals if the applicant provides good and sufficient cause for the delay. The ruling also referenced the principles outlined in First American Bank of Kenya Ltd vs. Gulab P Shah, which include evaluating the explanation for delay, the arguability of the case, and potential prejudice to the respondent.
Succession Regime
Governing succession under Kenyan law, with no explicit reference to testate/intestacy or specific statutory framework in the ruling.
Precedent Name
- Samuel Mwaura Muthumbi vs. Josphine Wanjiru Ngugi & Anor
- In Re Estate of Charles Mumbuche Gichonge (Deceased)
- Chudha International & 2 Ors vs. Uhuru Highway Development Limited & 2 Ors
- Republic vs. Anti-Counterfeit Agency & 2 Ors Ex Parte Surgipharm Limited
- SAJ Ceramics vs. Joel Maithya
- Thuita Mwangi vs. Kenya Airways Limited
- Nancy Wangari Kinyua vs. Rose Wambui & Anor
Executor Name
- Mary CHEPKIRUI
- Irene CHEROTICH
Cited Statute
Civil Procedure Act
Executor Appointment
Administrator of the Estate of Kipsoi Arap Kenduiwo (deceased)
Judge Name
A. N. Ongeri
Passage Text
- Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against... Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
- I find that it is in the interest of justice that the applicant be granted leave to appeal out of time since this case involves distribution of family wealth and it has not been shown that the Respondents will suffer any prejudice.
- I accordingly allow the application dated 23/9/2019 on condition that:- (i) The said appeal is filed within 30 days of this date. (ii) Failure to file the said appeal within the time stated above, the certificate of confirmation to be executed. (iii) The cost of this Application to abide the Appeal.