In re Estate of Kisigwa Asuga Asuga (Deceased)[2020] eKLR Case Summary

Court
High Court of Kenya at Kakamega
Category
Civil
Judge(s)
W. Musyoka
Judgment Date
October 30, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: In re Estate of Kisigwa Asuga Asuga (Deceased)[2020] eKLR


1. Case Information:
- Name of the Case: In the Matter of the Estate of Kisigwa Asuga Asuga (Deceased)
- Case Number: Succession Cause No. 158 of 2000
- Court: High Court of Kenya at Kakamega
- Date Delivered: 30th October 2020
- Category of Law: Civil
- Judge(s): W. Musyoka
- Country: Kenya

2. Questions Presented:
The central legal issues in this case revolve around whether the applicant, Recho Kavayi Kisigwa, should be granted leave to appeal against a ruling that dismissed her earlier application concerning the estate of the deceased, specifically regarding the property N. Maragoli/Kisatiru/1861. The court must also determine the validity of the applicant's claims regarding the delay in filing her appeal and whether the inhibition order sought is appropriate.

3. Facts of the Case:
Recho Kavayi Kisigwa is the applicant in this case, seeking to appeal a ruling issued on 22nd November 2018, which dismissed her application regarding the estate of the deceased, Kisigwa Asuga Asuga. The respondent, Albert Imbuga Kisigwa, is the administrator of the estate and is accused by the applicant of attempting to dispose of property N. Maragoli/Kisatiru/1861, which the applicant claims to reside on. The applicant argues that delays in filing her appeal were caused by her health issues and the late provision of certified court documents. The respondent counters that the applicant's actions are vexatious and an abuse of the court process.

4. Procedural History:
The case has gone through various stages in the court system. The initial application for revocation of grant was dismissed in 2016, followed by another application in 2017, which was partially granted. The ruling on 22nd November 2018, which is the subject of this appeal, dismissed the applicant's request for amendments to the certificate of confirmation of grant. The applicant filed a notice of appeal on 10th December 2018 but did not pursue her appeal until July 2020, leading to the current application for leave to appeal.

5. Analysis:
- Rules: The court considered the provisions of the Law of Succession Act and the Civil Procedure Rules, particularly regarding the requirements for filing appeals and the need for leave to appeal in succession matters. Specifically, Rule 75(2) of the Court of Appeal Rules and Section 66 of the Civil Procedure Act were relevant to the case.
- Case Law: The court referenced several previous cases, including *In re Estate of Cecilia Wanjiru Kibiche (Deceased)* [2018] eKLR, which outlines the criteria for granting leave to appeal, and *In re Estate of Chege Muikiria (Deceased)* [2020] eKLR, which discusses the implications of inordinate delays in filing appeals. The court emphasized that previous rulings establish that the Law of Succession Act does not provide an automatic right of appeal.
- Application: The court found that the applicant's delay of one year and eight months in seeking leave to appeal was not adequately justified. The reasons provided, including health issues and the Covid-19 pandemic, were deemed insufficient to explain the lengthy delay. Furthermore, the court determined that the appeal lacked merit, as the issues raised pertained more to land transmission, which falls outside the jurisdiction of the probate court.

6. Conclusion:
The court ruled against the applicant's request for leave to appeal, stating that the appeal lacked merit and that the delay in filing was inordinate and unjustified. The court emphasized that the applicant should pursue her claims regarding property ownership through the appropriate land courts rather than through succession proceedings. As a result, the application was dismissed, and each party was ordered to bear their own costs.

7. Dissent:
There were no dissenting opinions noted in this ruling.

8. Summary:
The High Court of Kenya at Kakamega dismissed the application for leave to appeal concerning the estate of Kisigwa Asuga Asuga, highlighting significant delays and lack of merit in the appeal. The ruling underscores the importance of adhering to procedural timelines in legal proceedings and clarifies the jurisdictional boundaries between succession and land law. The decision reinforces the need for parties to pursue claims in the appropriate forums, particularly in matters involving land disputes.

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