In re Estate Virginia Sangalo Luseno(Deceased) [2020] eKLR Case Summary

Court
High Court of Kenya at Kitale
Category
Civil
Judge(s)
Hon. H. K. Chemitei
Judgment Date
October 07, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: In re Estate Virginia Sangalo Luseno(Deceased) [2020] eKLR


1. Case Information:
- Name of the Case: William Nyongesa Festo Lunyeleke v. Kennedy Wanjala Mabonga & Trustees for Women Community Based Organization
- Case Number: Succession Cause No. 14 of 2015
- Court: High Court of Kenya at Kitale
- Date Delivered: October 7, 2020
- Category of Law: Civil
- Judge(s): Hon. H. K. Chemitei
- Country: Kenya

2. Questions Presented:
The central legal issues for resolution are whether the applicant, William Nyongesa Festo Lunyeleke, should be granted leave to appeal out of time to the Court of Appeal, and whether he should be allowed to file a notice of appeal out of time.

3. Facts of the Case:
The applicant, William Nyongesa Festo Lunyeleke, was dissatisfied with a judgment issued by the High Court on July 23, 2019, concerning the estate of the late Virginia Sangalo Luseno. He initially filed a notice of appeal, which was later deemed defective and struck out by the Court of Appeal on August 7, 2020. In response, the applicant filed an application on August 13, 2020, seeking permission to file an appeal out of time, admitting the defect in his earlier notice. The respondent, Kennedy Wanjala Mabonga, opposed this application, contending that the matter had already been adjudicated by the Court of Appeal and that the applicant should seek an extension from that court.

4. Procedural History:
The case progressed as follows: After the High Court's judgment on July 23, 2019, the applicant filed a notice of appeal, which was subsequently struck out by the Court of Appeal on August 7, 2020, due to its defective nature. Following this ruling, the applicant promptly filed an application in the High Court on August 13, 2020, seeking leave to appeal out of time. The respondent opposed the application on grounds of jurisdiction, arguing that only the Court of Appeal could address the matter.

5. Analysis:
- Rules: The court considered Section 7 of the Appellate Jurisdiction Act, Cap 9 of the Laws of Kenya, which allows the High Court to extend the time for giving notice of intention to appeal, even after the time has expired, except in cases involving a death sentence.
- Case Law: The court referenced the principle that unless an application is clearly hopeless or vexatious, litigants should be given opportunities to exhaust available legal remedies. This principle supports the notion that procedural errors should not deny parties access to justice.
- Application: The court determined that the applicant's notice of appeal was struck out due to a defect but not dismissed, allowing the applicant to approach the High Court for relief. The court found that the application was not frivolous or vexatious and recognized the importance of the matter concerning the deceased's estate. It concluded that allowing the application would not prejudice the respondent.

6. Conclusion:
The High Court granted the applicant's application, allowing him 14 days to file his notice of appeal out of time and to file his appeal against the decision of the court dated July 23, 2019. The court emphasized the need to provide litigants with opportunities to pursue their legal rights, particularly in matters involving estates.

7. Dissent:
There were no dissenting opinions recorded in this case, as the ruling was unanimous in allowing the application for leave to appeal.

8. Summary:
The High Court of Kenya at Kitale ruled in favor of the applicant, William Nyongesa Festo Lunyeleke, granting him an extension to file his notice of appeal out of time. This decision underscores the court's commitment to ensuring access to justice and the importance of allowing litigants to correct procedural errors without undue prejudice, particularly in sensitive matters concerning estates.

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