[2005] KEHC 2170 (KLR)
The court found that the applicants lacked locus standi as they were not parties to the suit before the lower court and had not taken steps to substitute themselves as legal representatives of the deceased. The applicants failed to exhibit the Letters of Administration and did not explain the delay of four years in...
Source-derived case information.
- Citation
- [2005] KEHC 2170 (KLR)
- Parties
- Applicant: Emily Mumbi Njiru; Respondent: Trufosa Njeru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 4 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed with costs
- Judges
- I Lenaola
- Legal Topics
- Leave to Appeal Out of Time, Locus Standi, Substitution of Parties, Delay in Filing, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Emily Mumbi Njiru
Applicant
Trufosa Njeru
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has locus standi to seek leave to appeal out of time.
- 2 Whether sufficient cause has been shown for the delay in filing the appeal.
- 3 Whether the applicant is properly substituted as a party to the lower court proceedings.
Ratio Decidendi
The court found that the applicants lacked locus standi as they were not parties to the suit before the lower court and had not taken steps to substitute themselves as legal representatives of the deceased. The applicants failed to exhibit the Letters of Administration and did not explain the delay of four years in seeking leave to appeal. The court held that, in the absence of proper substitution and demonstration of interest, the applicants could not be granted leave to appeal out of time. The application was therefore dismissed as incompetent, with the court noting that any leave granted would be of no use to the applicants in their current status.
Court Disposition
application dismissed with costs
Orders
- Application dated 28.1.2003 is dismissed with costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
MISC. APPLICATION NO. 4 OF 2003
EMILY MUMBI NJIRU ……………………………..APPLICANTS
VERSUS
TRUFOSA NJERU ……………………………………. RESPONDENT
RULING
1. The Applicant seeks leave to file an Appeal out of time. Invoking S.79 G of the Civil Procedure Act he states in the grounds in support that the Judgment sought to be appealed from is bad in law and was premised on wrong grounds and facts.
2. The intended Appeal arises from the decision inRM’s Court (Kerugoya) in Land Disputes Case No. 50/2000 whereby the Court ordered that the O.C.S. Kianyaga do provide security during the sub-division of parcel number Ngariama/Rungeto/287. The Appellant in his Supplementary Affidavit sworn on 11. 7.2003 with leave of Court states that the decision was issued on 11. 9.2001.
3. The Applicant is the son of one Njiru Njage who died on 26. 9.2000. The Orders Appealed from were issued after the death of Njiru Njage who was a party to the case before the Land Disputes Tribunal. The Applicant was not a party to those proceedings and is not a party to the case before the Resident Magistrate’s Court. He however obtained Letters of Administration to his late father’s estate on 17. 10. 2002. The Letters are not exhibited anywhere in the Application.
4. Counsel for the Respondent calls the Applicants strangers to the cause in the Lower Court and they cannot file the Appeal even if leave is granted.
5. I agree that the Application is incompetent. The applicants have not established their Locus Standi. They are not parties to the suit before the Lower Court and have taken no steps to substitute themselves. They have not even shown this Court that they have any interest in the matter. Worse for them, they seek leave to Appeal four (4) years after the decision in question and have not explained the delay in doing so.
They have also not explained why they obtained Letters of Administration in 2002, if at all and taken another three (3) months to file the instant Application.
6. I have sympathy for the Applicants, this being a Land matter but sadly, where they have not established themselves as sufficiently clothed with legal authority to file the Appeal, I should not exercise discretion in their favour. They may well go back to the suit intended to be Appealed from and make themselves proper parties. As it is now, even if they have authority to represent the deceased party, they cannot jump into the matter in the manner they wish to do. Any leave granted would be of no use to them.
7. Application dated 28. 1.2003 is dismissed with costs.
Orders accordingly.
Read in Open Court this 23rd day of February 2005
I. LENAOLA
JUDGE
In the Presence of;
Mr. Mutahi for the Applicant
N/A for the Respondent
I. LENAOLA
JUDGE