[2007] KEHC 2939 (KLR)
The court found that the applicant was prevented from filing the appeal within the prescribed time due to the requirement to obtain a decree before the appeal could be received. In the absence of opposition from the respondent and in view of the explanation provided, the court exercised its discretion to grant leave...
Source-derived case information.
- Citation
- [2007] KEHC 2939 (KLR)
- Parties
- Applicant: Jackson Kariuki Ngatia; Respondent: Samuel Muhindi Muriathi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 108 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- Application allowed.
- Judges
- MM Kasango
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Land Disputes Tribunal, Appeals Committee Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Kariuki Ngatia
Applicant
Samuel Muhindi Muriathi
Respondent
Procedural Posture
Miscellaneous Application / 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 file an appeal out of time to the Provincial Appeals Committee.
- 2 Whether a stay of execution should be granted in Nanyuki SRM Case No. 23 of 2005 pending the appeal.
Ratio Decidendi
The court found that the applicant was prevented from filing the appeal within the prescribed time due to the requirement to obtain a decree before the appeal could be received. In the absence of opposition from the respondent and in view of the explanation provided, the court exercised its discretion to grant leave to file the appeal out of time. The court also found it appropriate to grant a stay of execution in Nanyuki SRM Case No. 23 of 2005 pending the hearing and determination of the appeal at the Provincial Appeals Committee, to preserve the subject matter of the dispute.
Court Disposition
Application allowed.
Orders
- The applicant is granted leave to file an appeal at the Provincial Appeals Committee out of time.
- A stay of execution in Nanyuki SRM Case No. 23 of 2005 is granted pending the hearing and determination of the appeal at the Provincial Appeals Committee.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Misc 108 of 2006
JACKSON KARIUKI NGATIA……………..………………..APPLICANT
VERSUS
SAMUEL MUHINDI MURIATHI…………….…………...RESPONDENT
RULING
The Notice of Motion dated 31st May 2006 was filed by the Applicant Jackson Kariuki Ngatia the same is brought under section
8 (I) of the Land Disputes Act 1990. The Applicant seeks from this court permission to file an appeal at the Provincial Appeals Committee at the same time the Applicant also seeks stay of execution in Nanyuki SRM case No. 23 of 2005. The Respondent although was served did not appear at the hearing nor did he file any opposition to the application. Section 8 (1) provides as follows:-
(I) Any party to a dispute under section 3 who is aggrieved by the decision of the Tribunal may, within thirty days of the decision, appeal to the Appeals Committee constituted for the Province in which the land which is the subject matter of the dispute is situated.
The application is merited for the Applicant was prevented from filing the appeal on time due to the request that he should obtain a decree before the appeal could be received. Accordingly the court does hereby grant the Applicant leave to file an appeal at the Provincial Appeals Committee out of time. The court does hereby also grant the Applicant stay of execution in Nanyuki S.R.M. Case No. 23 of 2005 pending the hearing and determination of the appeal at Provincial Appeals Committee.
Orders accordingly.
Dated and Delivered at Nyeri on 11th May 2007.
MARY KASANGO
JUDGE