Case ID:162939

Patricia Hadija Wagaki v Joseph Muriithi Mathinji [2020] eKLR

Case Metadata

Case Number:

Civil Application 26 of 2019

Parties:

Patricia Hadija Wagaki v Joseph Muriithi Mathinji

Date Delivered:

07 Aug 2020

Case Class:

Civil

Court:

Court of Appeal at Nyeri

Case Action:

Judgment

Judge(s):

Fatuma sichale

Citation:

Patricia Hadija Wagaki v Joseph Muriithi Mathinji [2020] eKLR

Case History:

Being an application for extension of time to lodge an Appeal against judgment of High Court of Kenya at Nanyuki (Mary Kasango, J) dated 19th April, 2018 in Succession Cause No. 64 of 2016)

Court Division:

Civil

County:

Nyeri

History Docket No:

Succession Cause 64 of 2016

History Judges:

Mary Muhanji Kasango

History County:

Laikipia

Case Outcome:

Motion allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE COURT OF APPEAL

AT NYERI

[CORAM: SICHALE, JA IN CHAMBERS]

CIVIL APPLICATION NO. 26 OF 2019

BETWEEN

PATRICIA HADIJA WAGAKI..........................................APPLICANT

AND

JOSEPH MURIITHI MATHINJI..................................RESPONDENT

(Being an application for extension of time to lodge an Appeal against judgment of

High Court

of Kenya at Nanyuki (Mary Kasango, J) dated 19

th

April, 2018

in

Succession Cause No. 64 of 2016)

************************

RULING

The applicant,

Patricia Hadija Wagaki

filed a Notice of Motion application pursuant to Rule 4 of this Court’s Rules as well as Sections 3A and 3B of the Appellate Jurisdiction Act. In the main, the applicant sought to have time extended for the filing of an appeal against the decision in Nanyuki High Court Succession Cause No. 64 of 2016, delivered on

19

th

April, 2018

.

Joseph Muriithi Mathinji

was named as a respondent. He however does not appear to have filed an affidavit in response to the applicant’s supporting affidavit dated

8

th

March, 2019.

The reasons for the delay as can be discerned from the Notice of Motion and the supporting affidavit are that the petitioner in the Succession Cause No. 64 of 2016, one

Miriam Wangui John

(the deceased) died on

16

th

September,

2018

; that the impugned judgment was delivered on

19

th

April, 2018

; that the deceased timeously lodged a Notice of Appeal on

24

th

April, 2018

; that on

2

nd

May, 2018

, the deceased applied for certified copies of the proceedings; that the proceedings became ready for collection on

16

th

October, 2018

, after the deceased petitioner had died; that on

20

th

November, 2018

, the applicant applied for Grant of Letters of Administration

ad litem

in respect of the estate of the deceased; that the Grant was issued on

17

th

December, 2018

and thereafter, the applicant

applied to substitute the deceased petitioner and substitution took effect pursuant to a consent obtained on

4

th

January, 2019.

I have considered the motion and its supporting affidavit as well as the law in absence of counsel in view of the prevailing circumstances caused by Covid 19 pandemic. Rule 4 of this Court’s Rules provides that:

“The Court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended”.

The above rule, however, does not provide for factors a Court ought to consider in an application for enlargement of time.

Be that as it may, the Courts have devised appropriate principles to be applied in arriving at a

‘just’

decision, bearing in mind the circumstances of each case.

In

Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKLR

, this Court stated:

“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.”

In the instant matter, it is my view that the delay has reasonably been explained. The death of the petitioner in the cause is a plausible explanation for the delay.

Accordingly, I allow the motion, I extend time to lodge the record of appeal against the judgment of

19

th

April, 2018

in High Court Case No. 64 of 2016 by thirty (30) days (in view of the Covid 19 pandemic) from the date of this ruling.

Each party to bear his/her own costs.

Dated and Delivered at Nairobi this 7

th

Day of August, 2020.

F. SICHALE

....................................

JUDGE OF APPEAL

I certify that this is a true copy of the original.

Signed

DEPUTY REGISTRAR