[2003] KEHC 221 (KLR)
The court found that the appeal was filed approximately six months after the ruling sought to be appealed against, well beyond the sixty-day statutory limit set by Section 8 of the Land Disputes Tribunal Act. No leave of court was sought or obtained to file the appeal out of time. As a result, the appeal was deemed...
Source-derived case information.
- Citation
- [2003] KEHC 221 (KLR)
- Parties
- Appellant: Gathoni Githogori (Personal Representative of Gacheke Macharia); Respondent: Benjamin Ngatia Macharia (Personal and Legal Representative of Ngatia Macharia – deceased)
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 209 of 2000
- Procedural Posture
- Miscellaneous Application / Preliminary Objection Ruling
- Outcome
- Appeal struck out as incompetent; preliminary objection sustained.
- Legal Topics
- Appeal Out of Time, Preliminary Objection, Land Disputes Tribunal Act, Limitation Periods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gathoni Githogori (Personal Representative of Gacheke Macharia)
Appellant
Benjamin Ngatia Macharia (Personal and Legal Representative of Ngatia Macharia – deceased)
Respondent
Procedural Posture
Miscellaneous Application / Preliminary Objection Ruling
Legal Issues
- 1 Whether the appeal was filed within the statutory time limit prescribed by Section 8 of the Land Disputes Tribunal Act, No. 18 of 1990.
- 2 Whether leave of court was obtained to file the appeal out of time.
- 3 Whether the appeal is incompetent and unmaintainable in law.
Ratio Decidendi
The court found that the appeal was filed approximately six months after the ruling sought to be appealed against, well beyond the sixty-day statutory limit set by Section 8 of the Land Disputes Tribunal Act. No leave of court was sought or obtained to file the appeal out of time. As a result, the appeal was deemed incompetent and unmaintainable in law. The preliminary objection was upheld and the appeal was struck out with costs to the respondent.
Court Disposition
Appeal struck out as incompetent; preliminary objection sustained.
Orders
- The appeal is struck out with costs to the respondent.
Full Case Text
Judgment text and source record
13 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI HC. MISC. APP. NO.209 OF 2000
GATHONI GITHOGORI (Personal Representative of Gacheke
Macharia)……………………………………………………………….APPELLANT
VERSUS
BENJAMIN NGATIA MACHARIA (Personal and Legal Representative of Ngatia Macharia – deceased)………………………………..RESPONDENT R U L I N G
The Respondent herein has raised a preliminary objection to this appeal on the grounds that the same is incompetent, misconceived and unmaintainable in law as it contravenes the Mandatory Provisions of Section 8 of the Land Disputes Tribunal Act Number 18 of 1990.
Counsel for the Respondent has submitted that the appeal is incompetent having been brought more than the sixty days provided under Section 8 of the Land Disputes Tribunal Act (No.18/1990).
It is evident from the proceedings which were attached to the memo of appeal that the ruling sought to be appealed against was delivered on 26th April, 2000 while this appeal was filed about six months later on 24/11/2000. No leave of this court was obtained to have the appeal filed out of time. The appeal is therefore clearly incompetent.
The preliminary objection is therefore sustained and the appeal is struck out with costs. Orders accordingly.
Dated, Signed and Delivered this 22nd day of December 2003.
H. M. OKWENGU
JUDGE