[2011] KEHC 2103 (KLR)
The court found that the applicant's delay of one week in filing the appeal was not inordinate and was satisfactorily explained by the late provision of proceedings. The respondent did not challenge the factual basis for the delay. Given the nature of the dispute—family land and succession—the court held that...
Source-derived case information.
- Citation
- [2011] KEHC 2103 (KLR)
- Parties
- Applicant: Michael Mwangi Jorom; Respondent: Robin Njue Njagi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 46 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application allowed
- Judges
- AO Muchelule
- Legal Topics
- Extension of Time, Appeals Out of Time, Succession Disputes, Family Land Distribution, Trusts in Succession, Delay in Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Mwangi Jorom
Applicant
Robin Njue Njagi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient cause for the delay in filing the appeal out of time.
- 2 Whether the delay of one week in filing the appeal is inordinate or excusable.
- 3 Whether the interests of justice require extension of time to allow the applicant to appeal the decision regarding distribution of the deceased's estate.
Ratio Decidendi
The court found that the applicant's delay of one week in filing the appeal was not inordinate and was satisfactorily explained by the late provision of proceedings. The respondent did not challenge the factual basis for the delay. Given the nature of the dispute—family land and succession—the court held that justice would be better served by allowing the applicant to be heard on appeal rather than being shut out on a technicality. The court exercised its discretion to extend the time for filing the appeal by 14 days, emphasizing that parties should not be denied access to justice due to minor procedural lapses, especially in land and family matters.
Court Disposition
application allowed
Orders
- Time for filing the appeal is extended by 14 days from the date of this ruling.
- The applicant shall pay the costs of the application.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
MISC. APPLICATION NO. 46 OF 2011
MICHAEL MWANGI JOROM ….………….............................................……APPLICANT
VERSUS
ROBIN NJUE NJAGI …………..........................................………………….RESPONDENT
R U L I N G
This is an application for the Applicant to file an appeal out of time. The proposed appeal is against the judgment of the SRM’s court at Runyenjes in SUCC. CAUSE NO.10 OF 2010. The Applicant was the objector in the cause. The estate in question was that of the deceased Beatrice Iguna Joram who died on 16th August 2009 leaving behind two sons and four married daughters. The Applicant and the Respondent are the two sons. The Respondent was the Petitioner in the Cause. The deceased had provided for the two during her life time by giving each two acres. She had been left with one acre comprised in LR KAGAARI/KANJA/6235. There was no dispute that the wish of the deceased was that this parcel be inherited by her four daughters.
The Applicant sought that he be registered in respect of 0. 5 acres of the suit land to hold in trust for her two sisters and that the Respondent to be registered in respect of the other 0. 5 acres to hold in trust for the remaining sisters. His argument was that if the four sisters were chased away from their marriage they would have something at their mother’s home to fall back on.
The case for the Respondent was that, as indicated by the deceased, the suit land should immediately go to his four sisters as joint owners. The court agreed with him and this is what aggrieved the Applicant who now seeks to challenge the decision if allowed to appeal.
The judgment was rendered on 26th April 2011. 28 days allowed for appeal ended on 23rd May 2011. The present application was filed on 30th May 2011. The Applicant is therefore late by one week. He states that he was late because he applied for proceedings on 11th May 2011 and they were not made available until 26th May 2011 at 5. 00pm. The replying affidavit does not challenge this factual position, but the Respondent contends that the appeal is frivolous since the trial court made a fair decision.
The dispute herein is over family land and the delay in question is not inordinate. It is established practice of the court that all land disputes should, wherever possible, be finally determined by the court and no party who desires to be heard by the court should be driven out of the seat of justice by the technical application of the rules.
(SIMPSON NDERITU KARITU –VS- MARTHA WATETU KARITU AND ANOTHER, CIVIL APPL. NO. 168 OF 2004 AT NAIROBI).
The time for the filing of the appeal is extended by 14 days. The Applicant has been indulged and will pay costs of the application.
DATED, SIGNED AND DELIVERED AT EMBU THIS 25th DAY OF JULY 2011
A.O. MUCHELULE
JUDGE