[2012] KEHC 5065 (KLR)
The court found that the applicant had provided a satisfactory explanation for the seven-month delay in filing the appeal, namely his ill-health, which was supported by affidavit evidence. The court considered that the dispute involved land and succession, matters of significant importance, and that it was just to...
Source-derived case information.
- Citation
- [2012] KEHC 5065 (KLR)
- Parties
- Applicant: Paul Mburu Muiruri; Respondent: Esther Wangui Muiruri; Respondent: Lawrence Gakuya Muiruri; Respondent: Mary Mugure Muiruri; Respondent: Wanjiru Muiruri
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 865 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- application allowed
- Judges
- DW Mbuteti
- Legal Topics
- Extension of Time to Appeal, Succession Disputes, Distribution of Estate, Testamentary Wishes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Mburu Muiruri
Applicant
Esther Wangui Muiruri
Respondent
Lawrence Gakuya Muiruri
Respondent
Mary Mugure Muiruri
Respondent
Wanjiru Muiruri
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 lower court's decree in a succession cause.
- 2 Whether the delay in filing the appeal was sufficiently explained and justified.
- 3 Whether the interests of justice require that the applicant be allowed to exhaust his right of appeal.
Ratio Decidendi
The court found that the applicant had provided a satisfactory explanation for the seven-month delay in filing the appeal, namely his ill-health, which was supported by affidavit evidence. The court considered that the dispute involved land and succession, matters of significant importance, and that it was just to allow the applicant to exhaust his right of appeal. The court was satisfied that the interests of justice would be served by granting leave to appeal out of time, and accordingly allowed the application, granting the applicant ten days from the date of the ruling to file the memorandum of appeal. The respondents were awarded the costs of the application.
Court Disposition
application allowed
Orders
- The applicant is granted leave to appeal out of time.
- The memorandum of appeal may be filed within ten (10) days of delivery of this ruling.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
MISCELLANEOUS APPLICATION NO. 865 OF 2005
PAUL MBURU MUIRURI.………………………..……….…..APPLICANT
VERSUS
1. ESTHER WANGUI MUIRURI
2. LAWRENCE GAKUYA MUIRURI
3. MARY MUGURE MUIRURI
4. WANJIRU MUIRURI……………..........………………....RESPONDENTS
R U L I N G
This application for leave to file appeal out of time (by notice of motion dated 9th June 2005) was filed on 10th June 2005. It came up for hearing on 11th December 2006 but could not be reached. It was again fixed for hearing on 17th September 2007 but was adjourned for a reason that was not recorded. On 18th November 2011 it was not reached and was fixed for hearing on 13th December 2011 when it was finally heard. So, the application was not disposed of as quickly as applications of this nature should be.
I have read the supporting and supplementary affidavits, and also the replying affidavit. I have also given due consideration to the submissions of learned counsels appearing.
The intended appeal is against the decree of the lower court passed on 24th November 2004 in a succession cause. By that decree the court ordered that the Deceased’s land, L.R. CHANIA/KANYONI/493, be divided equally between the two houses of the Deceased.
Grounds of appeal intended to be raised include the following:-
1. That there were other properties of the Deceased that were not taken into account when distribution was ordered.
2. That the Deceased’s testamentary wishes were not taken into account.
The application having been filed on 10th June 2005, there was a delay of about seven (7) months. The same is fully explained by the Applicant’s ill-health, and I accept the explanation.
The dispute here involves land. It is just that the Applicant be permitted to exhaust his right of appeal.
I will therefore allow the application. The applicant is granted leave to appeal out of time. Memorandum of appeal may be filed within ten (10) day of delivery of this ruling. The Respondents will have costs of this application.
It is so ordered.
DATED AT NAIROBI THIS 7th DAY OF FEBRUARY 2012
H.P.G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 10TH DAY OF FEBRUARY 2012