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Court of AppealDismissedCivil Application NAI 25 of 1983· [1984] KECA 110 (KLR)

James Macharia Gichuki v Harry Lewis Nangurai

Court of Appeal
7 March 1984
POPotterKNKnellerHAHancox
1,395 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The applicant, who described himself as beneficiary or assignee of a judgment of Muli, J delivered on 15 March 1982 in Nairobi High Court Civil Suit 1038 of 1974 concerning land parcel Ngong/Ngong/289, moved the Court of Appeal under Rules 42, 80 and 82(a) to strike out the respondent's notice of appeal filed on 18 March 1982, alleging failure to institute the appeal within the prescribed time and to prosecute it expeditiously as undertaken in a consent stay order of 29 October 1982 in Civil Application 42 of 1982. The respondent explained delay partly by imperfect copies of the proceedings - 25 pages were illegible - compounded by the judge's appointment as Attorney-General. In a single judgment delivered by Kneller, JA, with Hancox, JA agreeing, the court dismissed the motion. It held that although locus standi in applications for prerogative orders is treated liberally, it cannot be overcome by consent of the parties; the applicant had not applied in proper form to be joined as a party to the appeal nor been given leave to appear, so he had no interest in whether the appeal was filed in time or prosecuted expeditiously. The applicant was ordered to pay the costs of the motion. The court made no finding on the validity of the pre-delivery assignment, neither side producing authority, and offered practical guidance on curing the imperfect record.

Key legal issues

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01

Locus standi of an assignee of a judgment to seek striking out of a notice of appeal

Holding

The applicant, not being a party to the appeal and not having applied in proper form to be joined or obtained leave to appear, has no locus standi to bring the application

Reasoning

The court distinguished the liberal approach to locus standi in prerogative-order applications from inter partes litigation, holding that party consent cannot cure a want of standing. The applicant had not applied under the proper rule to be joined as a party to the appeal, so he lacked any interest in the timeliness of the appeal.

02

Assignment of interest in a judgment before delivery

Holding

The court made no determination on whether such an assignment is valid, as no authority was produced by either side

Reasoning

Mr Nowrojee submitted the plaintiffs could not assign their interest in a judgment before delivery; Mr Machira asserted they could, but neither produced authority. The court therefore did not decide the point, resting its dismissal on locus standi instead.

p. 3

Legal principles established

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  • Locus standi in applications for prerogative orders is treated more liberally than in inter partes proceedings, but it cannot be overcome by consent of the parties
  • A person who has not been joined or given leave to appear in an appeal has no interest in whether the appeal is filed in time or prosecuted expeditiously

Court orders

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  1. 1.The application (motion to strike out the notice of appeal) is dismissed
  2. 2.The applicant must pay the costs of the application
On appeal from
High Court of Kenya at Nairobi
Civil Suit No 1038 of 1974
Jurisdiction invoked
Rules 42, 80 and 82(a) of the Court of Appeal Rules (in the matter of an intended appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "James Macharia Gichuki v Harry Lewis Nangurai", Case Analysis (1984). Civil Application NAI 25 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/110/eng@1984-07-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.