[2021] KEELC 2784 (KLR)
The court found that the application for review was brought nearly three years after the delivery of judgment, and therefore declined to certify the application as urgent. The court did not address the substantive merits of the review or stay application at this stage, instead directing that the applicant serve the...
Source-derived case information.
- Citation
- [2021] KEELC 2784 (KLR)
- Parties
- Plaintiff: Jane Mwarania; Plaintiff: Joseph Gatobu M’Ikiugu; Plaintiff: Monica Kajuju M’Ikiugu; Plaintiff: Jane Kananu M’Ikiugu; Defendant: Francis Murithi M’Ikiugu; Applicant: Martin Mwirigi Kiugu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 68 of 2010
- Procedural Posture
- Review Application / Ruling on Certification of Urgency and Directions
- Outcome
- Application for urgency declined; directions issued for service and mention.
- Legal Topics
- Trust Land, Review of Judgment, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Mwarania
Plaintiff
Joseph Gatobu M’Ikiugu
Plaintiff
Monica Kajuju M’Ikiugu
Plaintiff
Jane Kananu M’Ikiugu
Plaintiff
Francis Murithi M’Ikiugu
Defendant
Martin Mwirigi Kiugu
Applicant
Procedural Posture
Review Application / Ruling on Certification of Urgency and Directions
Legal Issues
- 1 Whether the application for review of judgment should be certified as urgent.
- 2 Whether the applicant, as a non-party but family member, is entitled to be included in the equitable sub-division of the trust land.
- 3 Whether a stay of execution should be granted pending determination of the application.
Ratio Decidendi
The court found that the application for review was brought nearly three years after the delivery of judgment, and therefore declined to certify the application as urgent. The court did not address the substantive merits of the review or stay application at this stage, instead directing that the applicant serve the application on all parties and that the matter be mentioned for directions. The delay in bringing the application was a key factor in refusing to grant urgency, and the court emphasized the need for proper service and procedural compliance before substantive consideration.
Court Disposition
Application for urgency declined; directions issued for service and mention.
Orders
- The application is not certified urgent.
- The applicant to properly serve the application upon all the other parties within 14 days.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
MERU ELC CASE NO. 68 OF 2010
JANE MWARANIA ................................................1ST PLAINTIFF
JOSEPH GATOBU M’IKIUGU..............................2ND PLAINTIFF
MONICA KAJUJU M’IKIUGU.............................3RD PLAINTIFF
JANE KANANU M’IKIUGU...................................4TH PLAINTIFF
VERSUS
FRANCIS MURITHI M’IKIUGU...............................DEFENDANT
RULING
1. This application states that it has been brought to court under section 80 of the Civil Procedure Act and seeks the following orders:
a) This application be certified urgent and the same be heard ex-parte in the first instance and on priority basis thereafter.
b) There be stay of execution of the decree herein pending the hearing and determination of this application.
c) The judgment herein dated 1. 8.2018 be reviewed to the extent that it orders the equitable sub-division of L.R. No. Abothuguchi/Kithirune/91 amongst all the family members of the deceased.
d) Costs be provided for.
2. The application is supported by the affidavit of Martin Mwirigi Kiugu, the applicant, and has the following grounds:
a) This honourable court declared the defendant to be holding L.R. No. Abothuguchi/Kithirune/91 in trust for the family members of M’Ikiugu M’Marete, deceased.
b) This honourable court ordered that the said L.R. No. Abothuguchi/Kithirune/91 be sub-divided equitably amongst all the parties in this case.
c) The applicant/Interested Party was not a party to the case though a son to the deceased hence also entitled to a share of the trust land.
d) That the judgment as is disinherits the Applicant/Interested Party who is also entitled to a share thereof.
e) That there is risk of the other parties sharing the said L.R. No. Abothuguchi/Kithirune/91 amongst themselves and leaving the Applicant out.
f) That unless an order of stay of execution of the decree herein is granted the other parties herein might proceed with the execution rendering this application academic and denying the Applicant the chance to be heard.
g) That the judgment should be reviewed to cover the interests of all the family members of the deceased as opposed to only the parties of this case.
3. I note that judgment in this matter was delivered by the Hon. Justice Mwangi Njoroge, ELC Judge, at Meru on 29th August, 2018. Nearly three years after delivery of that Judgment, I decline to certify the application as urgent. The following orders are issued:
a) The application is not certified urgent.
b) The applicant to properly serve the application upon all the other parties within 14 days of today.
c) Parties to present themselves for directions before the ELC Court at Meru on 14th July, 2021.
Delivered in Chambers this 15th day of June, 2021 in the presence of:
CA: Ndegwa
Delivered in the absence of the parties.
P. M. NJOROGE,
JUDGE.