[2008] KEHC 2698 (KLR)
The court found that the applicant had demonstrated good cause for the delay in filing the appeal, primarily due to lack of notification of the tribunal proceedings and the existence of a pending High Court suit. The court rejected the respondent's argument that it lacked jurisdiction, holding that section 3A of the...
Source-derived case information.
- Citation
- [2008] KEHC 2698 (KLR)
- Parties
- Appellant: Muigai Muthana; Respondent: Wangare Kahara Gakunji (deceased, estate represented)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 915 of 2004
- Procedural Posture
- Civil Appeal / Application for Leave to Appeal Out of Time
- Outcome
- Application granted. Leave to file appeal out of time issued.
- Legal Topics
- Leave to Appeal Out of Time, Jurisdiction of High Court, Land Disputes Tribunal Awards, Limitation Periods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muigai Muthana
Appellant
Wangare Kahara Gakunji (deceased, estate represented)
Respondent
Procedural Posture
Civil Appeal / Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time against the decision of the Gatanga Land Dispute Tribunal.
- 2 Whether the court has jurisdiction to grant the orders sought under section 3A of the Civil Procedure Act.
- 3 Whether the delay in filing the appeal was justified.
Ratio Decidendi
The court found that the applicant had demonstrated good cause for the delay in filing the appeal, primarily due to lack of notification of the tribunal proceedings and the existence of a pending High Court suit. The court rejected the respondent's argument that it lacked jurisdiction, holding that section 3A of the Civil Procedure Act empowered it to grant the orders sought. The court also dismissed the assertion that the application was a waste of time, emphasizing the court's mandate to hear cases. Consequently, the court exercised its discretion to grant leave to the applicant to file the appeal out of time, with costs awarded to the applicant.
Court Disposition
Application granted. Leave to file appeal out of time issued.
Orders
- Leave is granted to the applicant to file an appeal to the Provincial Land Disputes Appeal Committee out of time.
- The appeal must be filed within 30 days from the date of this ruling.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 915 of 2004
1. Land Environmental Law Division
2. Leave to lodge appeal against the decision of Gatanga Land Dispute Tribunal
Case No 2/91
a) Proceedings took place in absence of applicant at the Land Dispute Tribunal Gatanga
b) Dispute time barred.
3. In reply-
a) Court lacks jurisdiction to grant orders sought,
b) The applicant is guilty of latches
c) Appeal if filed waste of time
4. Held-
a) For good cause application to file appeal out of time may be granted.
b) Delay came by not being informed of proceedings
c) Not a waste of courts time.
d) Court has jurisdiction section 3ACivil Procedure Act.
5. Case law - Nil
6. Advocate
T.T. Tiego of Onsando Ogonji & Co. Advocates for the appellant/applicant – present
L.W. Chege of J.K. Ngaruiya & Co. Advocates for the defendant/respondent – present
MUIGAI MUTHANA……………….....……APPELLANT/APPLICANT
VERSUS
WANGARE KAHARA GAKUNJI …………. ………RESPONDENT
RULING
I. LEAVE TO LODGE APPEAL OUT OF TIME.
1. The application of 27th March, 2007 seeks this courts leave to lodge an appeal against the decision/award of the land dispute tribunal at Gatanga No. 2/1998 to the Provincial Land Disputes Appeal Committee out of time.
2. The reasons given by the applicant is that the applicant as the registered proprietor of LR Loc.16 Ndungu Chege/182. The respondent who has since passed away had original sued t he applicant in HCCC 232/86. The suit abated on 24th June 2003.
3. The Land Disputes Tribunal on receiving the reference complaint proceeded to hear the dispute in the absent of the applicant. He was never notified of the hearing date, the date in which the award was made nor did he obtain notice when the magistrate/court intended to enter and make the award part of the orders of the court.
4. The applicant prays for leave to appeal out of time to the Provincial Land Dispute Appeal Committee against the decision.
II. IN REPLY
5. The advocate for the respondent has since had the estate of the deceased respondent come on record. She objected to the application on grounds that this court lack jurisdiction to issue such orders that the applicant is guilty of latches and the appeal is any was a waste of time.
III. OPINION
6. The term “waste of courts time” is unfortunate. The court is mandated to hear cases and should never be seen as a “waste of time.”
7. The applicant claims he is the registered proprietor. He has shown to court “good cause” why he was unable to file the intended appeal and is out of time. This was due to there being another court case pending at the High Court and due to non notification by the respondent and court of the proceeding.
8. I accordingly grant the application as prayed. That leave be and is hereby issued to file appeal to the Provincial Land tribunal out of time. That the appeal be filed within 30 days pending the hearing.
9. The costs be awarded to the applicant.
DATED THIS 11TH DAY OF MARCH 2008 AT NARIOBI.
M. A. ANG’AWA
JUDGE
T.T. Tiego of Onsando Ogonji & Co. Advocates for the appellant/applicant – present
L.W. Chege of J.K. Ngaruiya & Co. Advocates for the defendant/respondent – present