[1997] KECA 171 (KLR)
The Court held that the applicant had not sought and obtained substitution in place of his deceased father, who had originally lodged the Notice of Appeal. Without such substitution, the applicant lacked the legal capacity to make the present application for extension of time to appeal. Consequently, the application...
Source-derived case information.
- Citation
- [1997] KECA 171 (KLR)
- Parties
- Applicant: Evan Ngugi Kinyanjui; Respondent: Phillis Mbute; Respondent: Mararo Kamau; Respondent: James Mbugua Mbute; Respondent: Muiruri Kamau; Respondent: Charles Muita Kamau; Respondent: Esther Nyambura Kamau
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 127 of 1997
- Procedural Posture
- Civil Application / Application for Extension of Time to Appeal
- Outcome
- Application struck out as incompetent with costs to the respondents.
- Judges
- JE Gicheru
- Legal Topics
- Extension of Time, Substitution of Parties, Capacity to Sue
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evan Ngugi Kinyanjui
Applicant
Phillis Mbute
Respondent
Mararo Kamau
Respondent
James Mbugua Mbute
Respondent
Muiruri Kamau
Respondent
Charles Muita Kamau
Respondent
Esther Nyambura Kamau
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant had legal capacity to seek extension of time to appeal in place of his deceased father.
- 2 Whether substitution of the applicant in place of the deceased defendant was a prerequisite for the application.
Ratio Decidendi
The Court held that the applicant had not sought and obtained substitution in place of his deceased father, who had originally lodged the Notice of Appeal. Without such substitution, the applicant lacked the legal capacity to make the present application for extension of time to appeal. Consequently, the application was incompetent and was struck out with costs to the respondents.
Court Disposition
Application struck out as incompetent with costs to the respondents.
Orders
- The application is struck out as incompetent.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Gicheru, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 127 OF 1997
BETWEEN
EVAN NGUGI KINYANJUI..............................................APPLICANT
AND
1. PHILLIS MBUTE
2. MARARO KAMAU
3. JAMES MBUGUA MBUTE
4. MUIRURI KAMAU
5. CHARLES MUITA KAMAU
6. ESTHER NYAMBURA KAMAU..............................RESPONDENTS
(Application for extension of time in an intended appeal from a Ruling of theHigh Court
of Kenya at Nairobi (O'Kubasu, J.) dated 7th June, 1993 in H.C.C.C. NO. 3788 OF 1988)
********************
RULING
In an application in the superior court dated 4th November, 1996 the applicant herein sought orders inter alia that he be substituted in place of his deceased father, Kinyanjui Kamau, as the defendant in that court's Civil Case NO. 3758 of 1988 and that he be granted leave to appeal out of time against the decision in that case dated 7th June, 1993. That application was on 19th February, 1997 dismissed with costs to the respondents herein with the applicant being required to make the necessary application to this Court. On 30th May, 1997 he made the present application seeking leave of this Court to file a fresh Notice of Appeal and the record of appeal out of time against the aforementioned decision and that he be at liberty to apply for further orders and/or directions as this Court may deem fit and just to grant. From his affidavit and the annextures thereto in support of this application, it does not appear to me that he has sought and obtained substitution in place of his deceased father who had timeously lodged a Notice of Appeal against the decision referred to above on 18th June, 1993. In the result, it seems to me that he lacks capacity to make the present application. The same is therefore incompetent and is struck out with costs to the respondents.
Dated and delivered at Nairobi this 13th day of October, 1997.
J.E. GICHERU
............................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR