[2009] KEHC 1168 (KLR)
The court found that the applicant's application for review and inhibition was filed after an inordinate and unexplained delay of nine years, which is contrary to the requirements of promptness in seeking equitable relief. The applicant failed to provide any justification for the delay, rendering him guilty of...
Source-derived case information.
- Citation
- [2009] KEHC 1168 (KLR)
- Parties
- Applicant: John Mbaka James; Respondent: Abigael Kima; Respondent: Bibian Muthoni
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 20 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Inhibition and Review
- Outcome
- application dismissed with costs to the respondents
- Judges
- J Karanja
- Legal Topics
- Review of Court Orders, Inhibition Orders, Delay and Laches, Grant Revocation, Consent in Distribution, Equitable Doctrines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mbaka James
Applicant
Abigael Kima
Respondent
Bibian Muthoni
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Inhibition and Review
Legal Issues
- 1 Whether the applicant has provided sufficient grounds for review of the court's ruling delivered on 6/6/2000.
- 2 Whether the inordinate delay of 9 years in filing the application is excusable.
- 3 Whether the applicant is entitled to an order of inhibition against the subject land.
Ratio Decidendi
The court found that the applicant's application for review and inhibition was filed after an inordinate and unexplained delay of nine years, which is contrary to the requirements of promptness in seeking equitable relief. The applicant failed to provide any justification for the delay, rendering him guilty of laches and disentitling him to the court's equitable discretion. Furthermore, the court noted that the applicant's mother, from whom his claim derived, had consented in open court to the sub-division and distribution of the land, and the applicant could not now challenge that distribution. The statutory grounds for revocation of grant under Section 76 of the Law of Succession Act...
Court Disposition
application dismissed with costs to the respondents
Orders
- The application for inhibition and review is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT EMBU
Miscellaneous Application 20 of 2009
JOHN MBAKA JAMES……………………………………………….APPLICANT
VERSUS
ABIGAEL KIMA……………………………………………………1ST RESPONDENT
BIBIAN MUTHONI……………………………………………….2ND RESPONDENT
R U L I N G
The Applicant herein is seeking for 2 orders:- an order for inhibition and an order for review of this court’s ruling made on 6/6/2000 dismissing an application dated 3/11/1999. This application was therefore filed 9 years after the said application was dismissed. The same is premised on the 8 grounds on its face and on the supporting affidavit of the applicant dated 27/1/1999. It is opposed by one Florence Muringo Karuri vide her replying affidavit dated 8/4/2009. Both affidavits have several annexures all of which I have addressed my mind to and carefully considered the contents thereof.
Firstly, I wish to totally agree with the Respondent that there is inordinate delay in the matter which delay has not been explained. This application seeks to set aside or review a ruling delivered 9 years ago. A lot must have happened to the land in question since then and setting the ruling aside would be very disruptive to the parties herein:-
That notwithstanding the court rules that not even a feeble attempt has been made to explain the said delay. The applicant is certainly guilty of laches and he totally fails to invoke the doctrines of equity to assist him in this case. On that ground alone, this application should be dismissed.
I have nonetheless considered it on its merits. I find it totally devoid of merit. I say so because the applicant’s mother Beatrice Cianyaga was in court on 26/11/97 when the land was sub –divided and she consented to the sub-division. Indeed, the record shows that she was the one who told the court that they had agreed on the mode of distribution. The applicant cannot now come and complain against that mode of distribution. It matters not that the confirmation was not compliant with the paragraph 5 of Form P& A 9. What carries the day is what the parties agree in court at the time of the confirmation. The applicant has no justiciable claim in this matter whatsoever. If he was rendered destitute by the distribution, he can only blame his mother who gave up her inheritance. He cannot reclaim it by way of revocation of that grant. The Commissioner of Assise who made that ruling made an unequivocal finding that:-
“In a nutshell, the applicant has not made out a
case which warrants the annulment of the grant
under Section 76 of the Act. None of the
matters mentioned under Section 76 which
entitle an applicant to obtain annulment or
revocation of Grant have been proved. The
application has no merit and is misconceived….”
That remains the position todate. The applicant would still have no grounds to have the grant revoked even if that ruling was to be set aside. I find the application lacking in merit and I dismiss it with costs to the Respondents.
W. KARANJA
JUDGE
Delivered signed and dated at Embu this 2nd day of Nov.2009.
In presence of:- Mr Okwaro for applicant present
N/A for Respondent