[2018] KEHC 6392 (KLR)
The court found that the applicant was not a party to the ruling he sought to appeal against and, as such, lacked the requisite locus standi to seek leave to appeal out of time. The proper procedure for the applicant, as an interested party in succession proceedings, would have been to file an application for...
Source-derived case information.
- Citation
- [2018] KEHC 6392 (KLR)
- Parties
- Applicant: Joseph Nzau; Respondent: Wanguma Muthangya Kalole; Respondent: Kapendi Muthangya
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 2 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- LN Mutende
- Legal Topics
- Leave to Appeal Out of Time, Succession Proceedings, Interested Party Status
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Nzau
Applicant
Wanguma Muthangya Kalole
Respondent
Kapendi Muthangya
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant, not being a party to the original ruling, is entitled to seek leave to appeal out of time.
- 2 Whether the delay in filing the appeal was justified and excusable under the circumstances.
- 3 Whether the applicant should have sought revocation of grant as an interested party under succession law.
Ratio Decidendi
The court found that the applicant was not a party to the ruling he sought to appeal against and, as such, lacked the requisite locus standi to seek leave to appeal out of time. The proper procedure for the applicant, as an interested party in succession proceedings, would have been to file an application for revocation or annulment of the grant under Section 76 of the Law of Succession Act. The court further noted that, even if there had been delay in obtaining proceedings, the applicant's lack of standing was fatal to the application. Consequently, the court declined to grant leave and dismissed the application.
Court Disposition
application dismissed
Orders
- The application for leave to appeal out of time is dismissed.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITUI
CIVIL MISC. APPLICATION NO. 2 OF 2017
JOSEPH NZAU.......................................................APPLICANT
VERSUS
WANGUMA MUTHANGYA KALOLE.....1ST RESPONDENT
KAPENDI MUTHANGYA..........................2ND RESPONDENT
R U L I N G
1. Joseph Nzauwhom I shall refer to as the Applicant, though he describes himself as an Appellant, filed a Notice of Motion dated 9th December, 2016 seeking leave to appeal out of time.
2. The application is premised on grounds that the delay to file the Appeal was not intentional as he applied to be supplied with proceedings and ruling soon after the ruling was delivered but the Court delayed in supplying the same. That if granted, the order sought will not prejudice the Respondent and it will be in the interest of justice for it to be granted.
3. The Applicant deponed an affidavit in support of the application where he deponed that the ruling he seeks to appeal against was delivered on the 25th June, 2016. He filed a Memorandum of Appeal but was advised to seek leave to appeal out of time.
4. The Respondents did not file a reply to the application but appeared before Court and argued that the Applicant was not a party to the case therefore he cannot purport to appeal and further that they did not sell land to him therefore he had no case against him.
5. I have considered the application and the ruling the Applicant seeks to appeal against. The matter emanates from Succession Cause No. 108 of 2012where the Estate in question is for Muthangya Kalole(Deceased). Letters of Administration in the stated Estate were issued to Wanguma Muthangya Kalole.An Affidavit in Protest to the confirmation of grant was filed by one Kapandi Muthanjawho alleged that he had purchased a parcel of land from the Deceased. The learned Magistrate considered the Protest and reached a decision that the Petitioner and the Protester be registered as joint owners of the land. There were other beneficiaries to the Estate that were not considered. I have perused the affidavit in support of the Petition for Letters of Administration dated 14th June, 2012where the Applicant is listed as an Interested Party.
6. The Applicant herein was not one of the parties in the Ruling he seeks to appeal against. The matter having been a Succession Cause he could move the Court by filing an application for revocation of the grant. I have noted many errors having been made in the matter. According to Section 76of theLaw of Succession Act,an interested party may move the Court to revoke or annul a grant whether or not it is confirmed.
7. From the foregoing I decline to grant leave sought by the Applicant.
8. Accordingly the application is dismissed with no orders as to costs.
9. It is so ordered.
Dated, Signed and Delivered at Kitui this 16th day of May, 2018.
L. N. MUTENDE
JUDGE