[2003] KEHC 862 (KLR)
The application for review was not based on the grounds stipulated under Order XLIV Rule 1 of the Civil Procedure Rules. Even if such grounds had been cited, the application was filed inordinately late—over two years after the order sought to be reviewed—without any valid reason for the delay. Furthermore, the...
Source-derived case information.
- Citation
- [2003] KEHC 862 (KLR)
- Parties
- Applicant: Veronicah Wairimu Kihanya; Respondent: Augustine Mwaura Kihanya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 137 of 1996
- Procedural Posture
- Civil Appeal / Ruling on Application for Review
- Outcome
- application dismissed
- Legal Topics
- Review of Court Orders, Life Interest in Property, Delay in Filing Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Veronicah Wairimu Kihanya
Applicant
Augustine Mwaura Kihanya
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review
Legal Issues
- 1 Whether the application for review was based on the grounds stipulated under Order XLIV Rule 1 of the Civil Procedure Rules.
- 2 Whether the application for review was filed within a reasonable time and with valid reasons for delay.
- 3 Whether a beneficiary with a life interest in property is entitled to be granted a proprietary share or to transfer such rights.
Ratio Decidendi
The application for review was not based on the grounds stipulated under Order XLIV Rule 1 of the Civil Procedure Rules. Even if such grounds had been cited, the application was filed inordinately late—over two years after the order sought to be reviewed—without any valid reason for the delay. Furthermore, the applicant, as a beneficiary with a life interest in the property, is only entitled to use and enjoyment of the property during her lifetime and has no right to be registered as proprietor, to sell, or to transfer the property. The prayers sought in the application, including the grant of a 3-acre portion of the suit land, are inconsistent with the nature of a life interest. The...
Court Disposition
application dismissed
Orders
- The application is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL APPEAL NO. 137 OF 1996
VERONICAH WAIRIMU KIHANYA …………………….APPLICANT VERSUS AUGUSTINE MWAURA KIHANYA …………………….RESPONDENT
R U L I N G
I must confess and say this application has no merit and that it ought to be dismissed with costs.
The grounds stipulated in order XLIV Rule 1 of the Civil Procedure Rules upon which the court can exercise its discretion to make an order for review are not the ones upon which the present application is based.
In any event, even if these were cited and submitted upon, the applicant had an uphill task to convince this court that an application filed in court on 28th November, 2002 to review an order of court made on 14th June 2000 is not bad for being filed inordinately late without offering a valid reason for such a delay.
Looking at the application the other way, a beneficiary who has been given a life interest in any property, has only full use and enjoyment of it during his or her lifetime and there are no other rights say, being registered as proprietor thereof, selling the same or transferring such rights to heirs or third parties.
Counsel, for both parties, who are considered experts on these matters, should be in a position to advise their clients about such rights rather than filing such absurd applications in court like the present one.
Prayer 2 of the application suggests that an order be made granting the applicant 3 acres portion of the suit land which cannot be in view of the order of the court allowing the appellant – applicant to enjoy only a life interest in the same.
No order is required in respect to prayer 3 as counsel for the respondent is expected to advise him about the applicants life interest in the property which include the right to reside there with a roof over her head, and to use it during her life time only.
For these reasons, this application is unmeritorious and without any basis, and should be and is hereby dismissed with no order for costs.
These are the orders of this court.
Delivered and dated this 29th day of January, 2003.
D.K.S. AGANYANYA
JUDGE