Computation of Time in Probate and Administration Matters

In re Estate of Njue Kamunde (Deceased) [2017] eKLR

Misc Succession Cause No. 21 of 2016

High Court at Chuka

R .K. Limo, J

November 27, 2017.

Reported by Kakai Toili

Civil Practice and Procedure – submissions – filing of submissions – filing of submissions in probate matters – computation of time - what was the proper way of computing time in filing of submissions in probate and administration matters where the filing was directed by a court - Probate and Administration Rules, rule 63 (1); Civil Procedure Rules, order 50 rule 2

Jurisdiction – jurisdiction of the High Court – extension of time for filing submissions in probate and administration matters - whether the High Court had jurisdiction to extend the time for filing of submissions in probate and administration matters – Constitution of Kenya, 2010, article 159 (2) (d); Civil Procedure Act, section 95; Interpretation and General Provisions Act, section 59; Probate and Administration Rules, rule 63

Brief Facts:

On May 11, 2017 when both parties were in Court, the Court gave directions on the best way to deal with the Applications dated March 4, 2017. The Court gave both parties 21 days from May 11, 2017 to file statements of accounts on how the income or any proceeds from the estate had so far been utilized. The Applicant filed her Supplementary Affidavit and Submissions on June 2, 2017. The Respondent filed her documents on June 9, 2017.June 1, was normally a public holiday in Kenya usually known as Madaraka day or the date upon which Kenya attained its Independence.

The Applicant raised a Preliminary Objection to the further Supplementary Affidavit and authorities filed by the Respondent alleging that they were filed out of time and in contravention of the Court's directions or orders.

Issues:

1. What was the proper way of computing time in filing of submissions in probate and administration matters where the filing was directed by a court?
2. Whether the High Court had jurisdiction to extend the time for filing of submissions in probate and administration matters.

Relevant Provisions of the Law:

Civil Procedure Rules, 2010

Order 50 Rule 2

Where any limited time less than 6 days from or after any date or event is appointed or allowed for doing any act or taking any proceedings, Sunday , Christmas Day and Good Friday and any other day appointed as a public holding shall not be reckoned in the computation of such limited time.

Held:

1. The legal position on the question of computation of time was not expressly stated in the Law of Succession Act. However the purposive interpretation of the provisions of rule 63 (1) of the Probate and Administration Rules (P&A Rules) indicated that the provisions of rule 50 (2) and (3) applied when it came to computation of time within which either the rules  or an order of court limited time to do any act or thing. Rule 63 (1) of the P&A Rules stated that inter alia the provisions of rule 50 applied so far as it was relevant.
2. Order 50 rule 2 of the Civil Procedure Rules provided that where any limited time less than 6 days from or after any date or event was appointed or allowed for doing any act or taking any proceedings, Sunday, Christmas Day and Good Friday and any other day appointed as a public holiday would not be reckoned in the computation of such limited time. Order 50 rule 2 meant that if a party in a proceedings in court was given 6 days or less to do an act for example file a response or any other pleading, time would only run during official working days. The public holidays and weekends would be excluded in computation of time in such instances.
3. In the instant case, the parties were given 21 days so the provisions of order 50 rule 2 of the Civil Procedure Rules did not apply because where a party was given more than 6 days like in the instant case days falling on weekends and public holidays were counted in so far as the last day did not fall on such days, if it did the day was then excluded.
4. Under order 50 rule 3 the only days that were not be reckoned in computation of time, when the period given was more than 6 days were where the last day of the period given fell on those days that were outside official working days.
5. It was not correct that non official working days like the weekends and public holidays were not severally reckoned with in the computation of time. The period of 21 days granted to the parties to file their respective Supplementary Affidavits and Submissions was based on direction or orders of the Court given for purposes of expediting the determination of the Cause. The period the Court gave was not statutory or based on any expressed written law to bring into operation the provisions of section 57 of the Interpretation and General Provisions Act. That Section applied where time for doing any act in court proceedings was prescribed by a statute or the subsidiary legislation (rules or regulations). Nonetheless a look at the applicable rules, order 50 of the Civil Procedure Rules, showed that the said rules were anchored on section 57 of the Interpretation and General Provisions Act.
6. The 21 days the Court gave the parties on May 11, 2017 expired on June 1, 2017. The last day having fallen on a public holiday meant that going by the provisions of order 50 rule 3 Civil Procedure Rule, that June 1, 2017 was excluded in the computation of that 21 day period. The parties were required to have filed their papers by June 2, 2017. The record showed that only the Applicant was within time when she filed her documents to wit Supplementary Affidavit and written submissions on June 2, 2017. On the other hand, the Respondent was 7 days late when she filed her papers on June 9, 2017.
7. Section 95 of the Civil Procedure Act granted power or discretion to enlarge time, however it did not apply to probate matters by a dint of the provisions for rule 63 of P & A Rules which set the limits under which the provisions of Civil Procedure Rules applied. Section 95 only applied to civil proceedings carried out under Civil Procedure Act and Rules. Probate and Administration matters were special proceedings governed exclusively under Law of Succession Act which had its own rules and regulations dictating the mode of procedure and requirements to be adhered to.
8. Section 59 of Interpretation and General Provisions Act did not apply because the power to extend time under that section only related to a time prescribed by a statute or a written law. The period of 21 days given to parties in the Cause were not statutory in nature but were simply directions or orders given in the interest of time and justice to the parties.
9. The power to enlarge time in the instant case was donated by the provisions of order 50 rule 7 of the Civil Procedure Rules which applied to Probate matters pursuant to the provisions of rule 63 of P & A Rules. Article 159 (2) (d) of the Constitution could constructively be interpreted to cover instances where a court was minded to make decisions on substance rather than on technicalities.
10. The delay in filing the documents on time was based on the Respondent’s Counsel’s illusory on the computation of time given rather than getting the requisite documents late. The Respondent’s Counsel should have known better than her client, however it would have amounted to an injustice if a mistake by Counsel could be visited upon a litigant particularly in the circumstances of the Cause. The period of 21 days given was done with an overriding objective to facilitate just and expeditious resolution of the disputes in the Cause, however, it would have been drastic and unfair if the documents filed out of time were to be struck out. The Court was minded to determine the summons dated March 4, 2017 on substance rather than on a technicality such as not considering the Supplementary Affidavit and Authorities filed because they were filed out of time.

Preliminary Objection overruled

1. Time under which the Respondent was required to file her further Supplementary Affidavit, written submissions and authorities extended.
2. The Respondent’s Supplementary Affidavit, written submissions and authorities deemed duly filed and served.
3. Respondent to pay costs of the Preliminary Objection plus attendant costs incidental to the canvassing and determination of the same.
4. The matter be accorded priority in  view of the age of the Applicant