[2020] KEELC 2612 (KLR)
The court found that the applicants, not having been parties to the suit before the trial court, lacked the requisite locus standi to file an appeal. The proper procedure would have been for the applicants to first apply for substitution in place of the deceased parties in the lower court. Their failure to do so...
Source-derived case information.
- Citation
- [2020] KEELC 2612 (KLR)
- Parties
- Applicant: Simon Salaon Pertet; Applicant: Anne Lanoi Perter; Applicant: Edward Parsintei Pertet (suing as the adm of the estate of Stephen Leiyan Pertet); Respondent: John Meitamei Ole Saika; Respondent: Town Clerk of Narok
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Miscellaneous Case 9 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- application struck out
- Judges
- MN Kullow
- Legal Topics
- Locus Standi, Substitution of Parties, Appeals Out of Time, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Salaon Pertet
Applicant
Anne Lanoi Perter
Applicant
Edward Parsintei Pertet (suing as the adm of the estate of Stephen Leiyan Pertet)
Applicant
John Meitamei Ole Saika
Respondent
Town Clerk of Narok
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the applicants, not being parties to the original suit, have locus standi to file an appeal.
- 2 Whether the application offends the provisions of Order 1 Rule 10, Order 42 Rule 5, and Order 2 Rule 15 of the Civil Procedure Rules.
- 3 Whether the notice of motion should be struck out for disclosing no cause of action.
Ratio Decidendi
The court found that the applicants, not having been parties to the suit before the trial court, lacked the requisite locus standi to file an appeal. The proper procedure would have been for the applicants to first apply for substitution in place of the deceased parties in the lower court. Their failure to do so rendered the application incompetent and without a cause of action. Consequently, the preliminary objection was upheld and the notice of motion was struck out.
Court Disposition
application struck out
Orders
- The preliminary objection dated 9th November, 2019 is upheld.
- The notice of motion dated 18th October, 2019 is struck out.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
MISC APPLICATION NO. 9 OF 2019
SIMON SALAON PERTET
ANNE LANOI PERTER
EDWARD PARSINTEI PERTET(Suing as the adm of the estate of
STEPHEN LEIYAN PERTET........................INTENDED APPELLANTS/APPLICANTS
VERSUS
JOHN MEITAMEI OLE SAIKA..............................................................1ST RESPONDENT
TOWN CLERK OF NAROK...................................................................2ND RESPONDENT
RULING
By a Notice of Motion dated 18/10/19 the Applicant sought for orders of stay of execution of the judgment in Narok CMCC No. 82 of 2007John Metaimei Ole Saika-versus-Virginia Pertet & others and leave to appeal out of time.
The 1st Respondent raised a preliminary objection to the application that the said applicant lacks the locus standi to institute the suit herein and that the application offends the provisions of order 1 rule 10, order 42 rule 5 and order 2 rule 15 of the Civil Procedure Rules and thus prays that the suit be struck out as it discloses no cause of action.
The court had directed that the application be disposed off by way of written submissions though the applicants had not filed their submissions and the respondents’ preliminary objection is centred on whether a party who was not a party to the dispute in the lower court can institute an appeal. It is the respondents’ contention that the applicants have no audience as they failed to become substantive parties in the dispute before the lower court following the demise of his parents.
Having considered the preliminary objection which is not opposed by the Applicants I find that the Applicants having not been parties to the suit before the trial court cannot purport to file an appeal. Following the circumstances that lead to the determination of the primary suit it would have been proper for the applicant to have first applied to the court to have them substituted in the place of the deceased and in the circumstances I find that the preliminary objection dated 9th November, 2019 is merited and I uphold the same and I accordingly strike out the notice of motion dated 18th October, 2019.
DATED, SIGNED and DELIVERED IN OPEN COURT atNAROKon this 5THday of MAY, 2020.
Mohammed Kullow
Judge
15/4/2020
In the presence of:
CA:Chuma
N/A for the advocates and parties
Mohammed Kullow
Judge
5/5/2020