[2008] KEHC 702 (KLR)
The court found that the appellant, Esther Wanjiru Thwara, was not shown to be the same person as Esther Wanjiru Kola, who participated in the lower court proceedings. As such, the appellant lacked standing to bring the appeal. Furthermore, the appeal was not clearly directed at a specific decision of the lower...
Source-derived case information.
- Citation
- [2008] KEHC 702 (KLR)
- Parties
- Appellant: Esther Wanjiru Thwara; Respondent: Macharia Murage
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 34 of 1997
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- MM Kasango
- Legal Topics
- Succession Procedure, Grant of Letters of Administration, Objection to Grant, Appeal Rights in Succession, Leave to Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Wanjiru Thwara
Appellant
Macharia Murage
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant had locus standi to file the appeal having not participated in the lower court proceedings.
- 2 Whether the appeal was properly instituted against a clear and identifiable decision of the lower court.
- 3 Whether leave of court was required and obtained before filing the appeal in a succession matter.
Ratio Decidendi
The court found that the appellant, Esther Wanjiru Thwara, was not shown to be the same person as Esther Wanjiru Kola, who participated in the lower court proceedings. As such, the appellant lacked standing to bring the appeal. Furthermore, the appeal was not clearly directed at a specific decision of the lower court, as the memorandum of appeal did not identify whether the challenge was to the refusal to extend time or the confirmation of grant. Finally, the court held that appeals in succession matters require leave of court, which the appellant had not obtained or proved to have obtained. On these grounds, the appeal was found to be incompetent and was dismissed with costs to the...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Civil Appeal 34 of 1997
ESTHER WANJIRU TWARA …..….……………………. APPELLANT
VERSUS
MACHARIA MURAGE ………….…………………….. RESPONDENT
(Being an appeal against the decision of E.B. Ochieng DR in Resident Magistrate’s Succession Cause No. 226 of 1984 at Nyeri)
JUDGMENT
On the death of Thwara Wahome, Macharia Murage petitioned for the grant of letters of administration intestate. On 29th February 1988 an application was filed by Esther Wanjiru Kola. That application was allowed by consent whereby she was allowed to file her objection to making grant within 14 days. That consent was recorded on 29th February 1988. She did not file the objection within that time. She later filed an application for extension of time to file the objection which was dated 24th October 1988. The court on 27th October 1988 dismissed her application. The grant issued to the petitioner was confirmed on 5th October 1990. An appeal has been filed in this matter by a person called Esther Wanjiru Thwara. As it can very clearly be seen the said appellant is not the party that was before the lower court during the hearing of the application for extension to file objection. What is not clear is whether Esther Wanjiru Thwara and Esther Wanjiru Kola are the one and the same person. On that basis alone that this appeal has been filed by a party who did not participate in the lower court matter this appeal will fail. It is further not clear against which decision of the lower court this appeal is based upon. In that regard I quote from the Memorandum of Appeal which states, “(Appeal against decision of Resident Magistrate’s Court Nyeri in RM's Succession Cause No. 226 of 1994 Nyeri)”. From that statement I am unable to determine whether the appellant is appealing against the decision of 27th October 1989 which refused her prayer of extension of time to raise an objection, or the order of 5th October 1990 confirming the grant. On that basis also this appeal fails. Thirdly, an appeal on a succession matter does not lie as of right. It is necessary for leave of court to be obtained before the appeal is filed. The appellant did not prove such leave was granted and accordingly the appeal would fail for having being filed without leave. It is incompetent. For the reasons stated herein this appeal is hereby dismissed with costs to the respondent.
Dated and delivered at Nyeri this 8th day of October 2008.
MARY KASANGO
JUDGE