[2007] KEHC 1004 (KLR)
The court found that the applicant failed to exercise her right of appeal within the time granted and did not provide sufficient justification for the delay. Furthermore, the court held that the proper forum for appealing the decree of the Resident Magistrate was the High Court, not the Lands Disputes Appeal...
Source-derived case information.
- Citation
- [2007] KEHC 1004 (KLR)
- Parties
- Applicant: Lydia Muthoni; Respondent: Nguru Kamanja
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 110 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Appeals Process, Jurisdiction of Tribunals, Family Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lydia Muthoni
Applicant
Nguru Kamanja
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against the decree of the Resident Magistrate.
- 2 Whether the proper forum for appeal is the High Court or the Lands Disputes Appeal Tribunal.
- 3 Whether the delay in filing the appeal was reasonable.
Ratio Decidendi
The court found that the applicant failed to exercise her right of appeal within the time granted and did not provide sufficient justification for the delay. Furthermore, the court held that the proper forum for appealing the decree of the Resident Magistrate was the High Court, not the Lands Disputes Appeal Tribunal. The delay was deemed inordinate, and the court declined to grant the orders sought, resulting in the dismissal of the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application for leave to file appeal out of time is dismissed.
- The applicant shall bear the costs of the application.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Misc Civil Appli 110 of 2006
LYDIA MUTHONI…….……………..........………..…..APPLICANT
VERSUS
NGURU KAMANJA……………………………….RESPONDENT
RULING
This is a Miscellaneous Application filed under section 3 A and 95 Civil Procedure (Act). Notice of Motion seeks leave to the applicant to file his appeal out of time to the Central Provincial Appeal Tribunal and pending hearing of appeal status quo be maintained. The draft memo of appeal attached shows that the decision of the first Tribunal was already adopted before as Judgment of court. Decree is dated 4/8/2005 and a night of Appeal within 30 days was granted but the Applicant did not file any appeal. The exhibits by opposition “NK2”shows that the rice holding No. 3661 was of Nguri Kamanja and after decree the Rice holding was split into two acres each to be held by Lydia Muthoni Nguri and Sofia Wambui Nguri 2 acres. These women are described as wives of the deponent. Nguri Kamanja. It is clear the dispute was in one family.
Upon considering submissions of both Counsel and upon reading the application and the material land before the court, I am of the view that the decree of the Resident Magistrate can only be appealed against in the High Court not in the Lands Disputes Appeal Tribunal. The applicant failed to appeal to the Appeals Tribunal after the award. And also failed to exercise her right within a reasonable time after Judgment was entered in the Resident Magistrate’s Court. The delay is inordinate for above reasons I decline to grant orders sought.
Application is dismissed with costs.
Dated this 25th May, 2007.
J. N. KHAMINWA
JUDGE
25/5/2007
Khaminwa – Judge
Njue – Clerk
Ms Thungu for Applicant.
Ruling read in open court
J. N KHAMINWA
JUDGE