Charles Wanjuki Miricho Suing as the personal Representative of the Estate of Stephen Miricho Ngunjiri) v Wanjiru Baari Thitwa [2021] KEELC 2804 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction - time-bar under Section 4(4) Limitation of Actions Act
The appeal was not time barred; Section 4(4) applies to actions upon a judgment (enforcement), not appeals challenging a decision, and the only limitation was the 60-day period under Section 8(9) of the repealed Land Disputes Tribunals Act, which had been extended by court orders
Section 4(4) restricts proceedings to enforce or realize the fruits of a judgment, whereas this appeal sought to overturn the committee's decision. The 60-day period under the repealed Land Disputes Tribunals Act was the applicable one, and leave/extensions had already been granted in earlier miscellaneous applications, which cannot be reopened. Weakness of an appeal also does not oust jurisdiction.
Abuse of court process
Not established; annoyance to the Respondent and omission of documents did not amount to abuse of process
The court held that being irritated by an appeal does not, without more, render it an abuse, and missing documents may show lack of diligence rather than bad faith. There was insufficient material to conclude the appeal was an abuse of process.
Appeal overtaken by events
Yes - the award had been adopted as a decree, executed, and the suit property subdivided and disposed of to non-parties, rendering the appeal futile
The committee's award ceased to exist in its original state upon adoption as a decree in 2001, the decree was executed long ago, and the property was subdivided among the Respondent's children who were not parties. Natural justice bars adverse orders against absent proprietors, so proceeding would be futile.
Legal principles established
#- Bringing an action 'upon a judgment' under Section 4(4) of the Limitation of Actions Act refers to proceedings to enforce or realize the fruits of a judgment, not an appeal seeking to overturn a decision
- The mere age of a decision does not deprive the court of statutory jurisdiction to entertain an appeal where extension/leave has been properly granted
- Omission of documents from a record of appeal is not necessarily bad faith or abuse of process
- A distinction exists between fresh evidence on the merits of an appeal and affidavit evidence supporting an application to strike out or dismiss an appeal
- A court should not make orders in vain, particularly where third parties' proprietary rights would be affected without hearing them
Court orders
#- 1.The Appellant's appeal is hereby struck out with costs to the Respondent.
- 2.The Respondent is hereby awarded costs of the application as well.
- On appeal from
- Central Provincial Land Appeals Committee
- Jurisdiction invoked
- Sections 3A, 75, 78, 79G of the Civil Procedure Act and Order 42 of the Civil Procedure Rules (leave to appeal out of time from the Land Disputes Tribunals Act regime)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Fidesio Kinyua Mark t/a Jobin Enterprise v Eco Bank Kenya Limited & 3 others [2022] KEELC 2092 (KLR)[2022] KEELC 2092 (KLR)19 Jan 2022
- Fidesio Kinyua Mark t/a Jobin Enterprise v Eco Bank Kenya Limited & 3 others [2022] KEELC 2092 (KLR)[2022] KEELC 2092 (KLR)19 Jan 2022applied
Cite this brief
#Cite this brief
Caselaw, "Charles Wanjuki Miricho Suing as the personal Representative of the Estate of Stephen Miricho Ngunjiri) v Wanjiru Baari Thitwa [2021] KEELC 2804 (KLR)", Case Analysis (2021). Nyahururu ELC Misc. Application No. 7 of 2019 (Respondent's notice of motion dated 5th February 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2804/eng@2021-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.