Case ID:165544

Erasto Odhiambo Muga v Ester Ajwang Nyangure & 2 others [2020] eKLR

Case Metadata

Case Number:

Kisumu Civil Application 10 of 2020

Parties:

Erasto Odhiambo Muga v Ester Ajwang Nyangure, Eric Odhiambo Nyangure & Alice Anyango Odhiambo

Date Delivered:

23 Oct 2020

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Ruling

Judge(s):

Wanjiru Karanja, Hannah Magondi Okwengu, William Ouko

Citation:

Erasto Odhiambo Muga v Ester Ajwang Nyangure & 2 others [2020] eKLR

Case History:

(An application for leave to appeal against the Ruling and Order of the High Court of Kenya at Kisumu (D.S. Majanja, J.) dated and delivered on 30th June, 2016 in H.C. Succ. Cause No. 796 of 2010)

Court Division:

Civil

County:

Nairobi

History Docket No:

H.C. Succ. Cause No. 796 of 2010

History Judges:

David Amilcar Shikomera Majanja

Extract:

0

History County:

Kisumu

Case Outcome:

Application dismissed

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 NAIROBI

(CORAM: OUKO (P), KARANJA & OKWENGU, JJ.A)

KISUMU CIVIL APPLICATION NO. 10 OF 2020

BETWEEN

ERASTO ODHIAMBO MUGA.........................................................APPLICANT

AND

ESTER AJWANG NYANGURE............................................1

ST

RESPONDENT

ERIC ODHIAMBO NYANGURE........................................2

ND

RESPONDENT

ALICE ANYANGO ODHIAMBO........................................3

RD

RESPONDENT

(An application for leave to appeal against the Ruling and Order of the High Court of Kenya at Kisumu (D.S. Majanja, J.) dated and delivered on 30

th

June, 2016

in

H.C. Succ. Cause No. 796 of 2010)

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

RULING OF THE COURT

1.

Erasto Odhiambo Muga

through the firm of Bruce Odeny & Co. Advocates, has moved this Court by way of Notice of Motion dated 25th January, 2020 under

Section 7

of the Appellate Jurisdiction Act and

Rule 4

of the Court of Appeal Rules.

Section 7

deals with the power of the High Court to extend the time for giving notice of intention to appeal from a judgment of the High Court, for making an application for leave to appeal, or for a certificate that the case is fit for appeal. That Rule has no applicability in this Court.

2.

Rule 4

Court of Appeal Rules which is cited by the applicant confers on this Court’s jurisdiction to extend time. This Rule does not give this Court jurisdiction to grant leave where such leave is a prerequisite for filing an appeal before this Court.

3. What then does the applicant want from us? The first prayer in the notice of motion is for leave to file an appeal against the Ruling of D. S. Majanja dated 30th June, 2016 in

Succession Cause No. 796 of 2020.

The second prayer is that upon the said leave being granted this Court to deem the Notice of Appeal filed on 8th July, 2016 as dully filed and served. It would appear that the second prayer is for extension of time to file the Notice of Appeal out of time since it ought to be filed after leave is granted. We have no hesitation in saying at this early stage that the second prayer is supposed to be made as a single Judge application and not before a full bench of three Judges. In regard to such applications, this Court has hitherto expressed itself as follows in

Riccardo Fanelli &

2 Others vs. Frigrieri Graziano

(2015) eKLR.

Before me is yet another ominous motion on notice in which the applicants are seeking in the same application, reliefs which can only be granted by a single judge, as well as other reliefs which must be sought before the full court. This undesirable practice that is fast taking root in Malindi and Mombasa has no basis in the rules of procedure, encourages wastage of time in the form of unnecessary objections and is otherwise a devise for avoiding payment of the prescribed court fees for applications before a single judge, and those before the full court. We have previously decried the practice in

CHRISTOPHER IDDI MOTO & 15 OTHERS V. CHIRIBA NYAMBU BARUA & ANOTHER

, CA NO. 43 OF 2014 (UR 38/14)

and

FEISAL MOHAMED ALI V. REPUBLIC,

CR

AP.NO. 2 OF 2015 (UR1/15)

and hope that it shall ceases forthwith.

For the record applications for extension of time under

Rule 4

of the

Court of Appeal Rules

are, by virtual of the provisions of

rule 53 (1)

to be heard and determined in the first instance by a single judge. Such an application comes to the full court under

rule 55

only by way of reference from the decision of the single judge. (Kathurima I’noti JA)

We re-echo those sentiments and state that prayer 2 is not properly before Court.

4. On the question of leave to appeal, we note that the applicant seeks to appeal from a judgment in a succession matter. Leave is therefore a prerequisite which the applicant seems to be well aware of. In its decision in

Rhoda Wairimu Karanja and John Kioi Karanja vs. Mary Wangui

Karanja and Salome Njeri Karanja

, [2014] eKLR

, this Court

pronounced itself as follows:-

“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 merit serious judicial consideration. We think this is a good practice that ought to be retained in order to promote finality and expedition in the determination of probate and administration disputes.”

5. Under

Rule 39

of this Court’s Rules which is the applicable rule here,

the applicant ought to have applied for leave to appeal within 14 days

from the date of the decision he intended to appeal against. He did not do so. He is coming to this Court for the said leave four years down the line in this omnibus application. Our view of the matter is that he ought to have moved the court under

Rule 4

to extend time for him to apply for leave to appeal. It is only after such extension is granted that the Court can consider the merits of his application for leave. Indeed, his second prayer which we have already found is improperly before the court was not for extension of time to file the application for leave but for extension to file and serve the notice of appeal itself.

6. We do not have a competent application before us which we can determine on its merits. The entire application is therefore bad in law and we dismiss it with no order as to costs.

Dated and delivered at Nairobi this 23

rd

day of October, 2020.

W. OUKO, (P)

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

JUDGE OF APPEAL

W. KARANJA

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

JUDGE OF APPEAL

HANNAH OKWENGU

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

JUDGE OF APPEAL

I certify that this is a true

copy of the original.

Signed

DEPUTY REGISTRAR