Case ID:185743

Florence Gatwiri Kubai (Suing on behalf of Henry Kubai – Deceased) v Robert M’ngai M’iturigu [2021] eKLR

Case Metadata

Case Number:

Miscellaneous Application Case E017 of 2021

Parties:

Florence Gatwiri Kubai (Suing on behalf of Henry Kubai – Deceased) v Robert M’ngai M’iturigu

Date Delivered:

17 Nov 2021

Case Class:

Civil

Court:

Environment and Land Court at Meru

Case Action:

Ruling

Judge(s):

Christopher Kyania Nzili

Citation:

Florence Gatwiri Kubai (Suing on behalf of Henry Kubai – Deceased) v Robert M’ngai M’iturigu [2021] eKLR

Court Division:

Environment and Land

County:

Meru

Case Outcome:

Application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

MISCELLANEOUS APPLICATION CASE NO. E017 OF 2021

FLORENCE GATWIRI KUBAI

(Suing on behalf of

HENRY KUBAI – Deceased)................................APPLICANT

VERSUS

ROBERT M’NGAI M’ITURIGU.......................................................DEFENDANT

RULING

1. By a motion dated

28.5.2021

brought under

Order 51 rules 1, 3 and 4

of the

Civil Procedure Rules, Articles 48 and 159

of the

Constitution

, the applicant seeks leave to appeal out of time against a ruling delivered on

21.1.2021

in

Tigania PMCC No. 11 of 2020.

2. The reasons given on the face of the application and the supporting affidavit sworn on 28.5.2021 are: that of sickness, the appeal raised arguable point, delay is not inordinate and there will be no prejudice to the respondent.

3.

Further the applicant has attached to the affidavit a copy of a limited grant issued on

4.1.2021

for the estate of

Henry Kubai

who was the defendant in the lower court. The grant indicates he died on

15.6.2021.

4. The respondent opposes the notice of motion through a replying affidavit sworn on

5.10.2021

on the grounds that; there has been inordinate delay; there is prejudice since the applicant is illegally occupying the subject land; the preliminary objection was properly dismissed and that the applicant should await the outcome of the lower court case.

5. Having looked at the rival submissions and pleadings, while the court has discretion to extend time under

Sections 95

&

Section 79 (G)

of the

Civil Procedure Act

a party seeking such orders has to show sufficient reason and that no prejudice will be occasioned to the respondent if the orders sought are granted.

6. The applicant has alleged sickness as per the attached medical reports. There is also evidence the applicant applied for letters of grant ad litem. To my mind these are sufficient reasons to justify grant of the orders sought.

7. Similarly, the intended appeal raises issues. One, whether the respondent had capacity to institute a suit against a deceased person without bringing in a legal representative; two, whether the lower court suit is still ripe on account of abatement under

Order 24

of the

Civil Procedure Rules.

8. Due to the foregoing the court finds there will be no prejudice to the respondent by granting leave to appeal out of time. The application is allowed. The appeal shall be filed within 7 days from the date hereof.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 17

TH

DAY OF NOVEMBER, 2021

In presence of:

Robert M’Ngai – present

Applicant – absent

Court Assistant - Kananu

HON. C.K. NZILI

ELC JUDGE