[2017] KEHC 5112 (KLR)
The court found that, notwithstanding the jurisdictional objections raised by the respondent regarding the finality of the High Court's decision in boundary disputes under the repealed Registered Land Act, it was not appropriate at this stage to determine whether a second appeal lies. The applicant had provided a...
Source-derived case information.
- Citation
- [2017] KEHC 5112 (KLR)
- Parties
- Applicant: Cecilia Wanjiru Kimwere; Respondent: Honourable Attorney General; Respondent: John Gathara Wachuka
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 622 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- application allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Boundary Disputes, Jurisdiction of Court of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Cecilia Wanjiru Kimwere
Applicant
Honourable Attorney General
Respondent
John Gathara Wachuka
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicant should be granted leave to appeal the decision of the High Court made on 8th March, 2013 out of time.
- 2 Whether a stay of execution of the ruling and order of the High Court should be granted pending appeal.
- 3 Whether the Court of Appeal has jurisdiction to hear a second appeal in boundary disputes determined by the Land Registrar under the repealed Registered Land Act.
Ratio Decidendi
The court found that, notwithstanding the jurisdictional objections raised by the respondent regarding the finality of the High Court's decision in boundary disputes under the repealed Registered Land Act, it was not appropriate at this stage to determine whether a second appeal lies. The applicant had provided a reasonable explanation for the delay in seeking leave to appeal, namely illness and lack of awareness of the ruling's delivery. The court held that the applicant should be afforded an opportunity to pursue her grounds of appeal if dissatisfied with the High Court's order. Consequently, leave to appeal out of time was granted, and a stay of execution of the ruling and order of 8th...
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to appeal the decision of the High Court made on 8th March, 2013.
- The intended appeal shall be filed within 30 days from the date of this ruling.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OE KENYA AT NAIROBI
CIVIL APPEAL NO. 622 OF 2007
CECILIA WANJIRU KIMWERE..........................................APPLICANT
VERSUS
HONOURABLE ATTORNEY GENERAL ……....1ST RESPONDNENT
JOHN GATHARA WACHUKA ……….............….2ND RESPONDENT
RULING
The appellant by way of notice of motion dated 24th March, 2014 seeks leave to appeal the decision of this court made on 8th March, 2013 and if such leave is granted, then leave be granted to file the intended appeal out of time. There is also a prayer that there be a stay of execution of the ruling and order of this court issued on 8th March, 2013.
The record as set out in the application shows that the appellant had filed an application dated 28th May, 2013 seeking leave to appeal the decision of the court delivered on 8th March, 2013. That application was however struck out as the appellant had omitted to seek leave to appeal that decision. There is an averment by the appellant that she had been taken ill and was therefore not aware when the ruling was delivered, and came to learn of the same after the time for lodging an appeal had lapsed.
The application is opposed and counsel for the 2nd respondent filed grounds of opposition. The thrust of the 2nd respondent’s case is that the application is misconceived, incompetent and bad in law. Further, the appeal before the High Court arose from the Chief Land Registrar’s decision on resurvey of the subject plots and the High Court decision is final.
That being the case, there is no law that provides that the Court of Appeal has jurisdiction to hear and determine a 2nd appeal from the High Court relating to boundary disputes that had been determined by the Land Registrar under the now repealed Registered Land Act. In any case, the order given by the High Court does not prejudice the appellant and no substantial loss has been shown.
Finally, the appellant does not have an arguable appeal with any chance of success and she has not annexed any memorandum of appeal. In addition to the grounds of opposition the 2nd respondent filed a replying affidavit.
This is a land dispute and whether or not a second appeal lies is not for me to determine at this stage. I believe however that the appellant should be given a chance to canvass whatever grounds she may have if she is dissatisfied with the order of the High Court.
Accordingly, leave is hereby granted to the appellant to appeal the decision of this court made on 8th March, 2013. Further the said appeal shall be filed within 30 days from the date of this ruling. There shall be a stay of execution of the ruling of this court made on 8th March, 2013 until the appeal is determined. The costs shall be in the appeal.
Dated, signed and delivered at Nairobi this 6th Day of April, 2017.
A. MBOGHOLI MSAGHA
JUDGE