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ELCDismissedNot stated in judgment (Kerugoya ELC application)· [2024] KEELC 6364 (KLR)

Munyi v Kabita (Environment & Land Miscellaneous Case 2 of 2024) [2024] KEELC 6364 (KLR)

Environment and Land Court
3 October 2024
JMJ. M. Mutungi
2,035 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to extend time for an appeal because the applicant lacked legal standing to represent the deceased's estate whose land was in dispute.

What this practically means

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Executive summary

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The Applicant, Mary Muthoni Munyi, claiming to represent the estate of Jacob Munyi Andrea (deceased), sought leave under Section 79G of the Civil Procedure Act, Sections 16A of the Environment and Land Court Act and Section 95 of the Civil Procedure Act to appeal out of time against the ruling of the Principal Magistrate at Kerugoya delivered on 18th August 2023, which dismissed her application to review and set aside a consent order transferring 2 acres of land parcel Mutira/Kirimunge/582 to the Respondent. She attributed the delay of over four months to lack of notice of the delivery of the ruling, which was indeed delivered in the parties' absence. The Respondent opposed, contending the Applicant lacked locus standi as she was never a party to the suit and never exhibited her grant, and that the delay was inordinate. The court accepted that the delay was adequately explained, but held the decisive issue was standing. Alice Nyawira Muriuki held the first-in-time ad litem grant of 8th March 2021 and had been substituted as the deceased's representative, and two grants could not legally subsist under the Law of Succession Act. Relying on Alfred Njau v City Council of Nairobi and Trovistik Union International v Jane Mbeyu, the court held the Applicant lacked locus standi both in the Lower Court and before it; want of capacity is fatally defective. The Notice of Motion was dismissed with each party bearing their own costs.

Key legal issues

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01

Extension of time to appeal out of time

Holding

Delay of over four months was explained as the ruling was delivered in the absence of parties and may be excusable, but the applicant still had to demonstrate an arguable appeal

Reasoning

Section 79G CPA and Section 16A ELC Act allow admission of appeals out of time for good and sufficient cause; Section 95 permits enlargement of time. The court accepted the delay was explained but required the applicant to show a arguable appeal, and then determined the threshold issue of locus standi against her.

p. 3
02

Locus standi to represent a deceased estate

Holding

The Applicant lacked locus standi as Alice Nyawira Muriuki held the first-in-time ad litem grant and had been substituted as the deceased's legal representative; two grants could not legally subsist

Reasoning

The Applicant claimed representation via grant of 29th March 2021, but an ad litem grant had issued to Alice Nyawira Muriuki on 8th March 2021, who was substituted in the suit. Separate grants could not legally issue; any challenge to the prior grant lay in the succession court. Citing Alfred Njau and Trovistik Union International, the court held the Applicant lacked authority to represent the estate both in the Lower Court and before it.

p. 4

Legal principles established

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  • An appeal may be admitted out of time at the court's discretion, guided by the period of delay, reasons for delay, prejudice to the respondent and public importance
  • Only the person in whom representation to a deceased's estate vests has authority to represent it; locus standi goes to the root of the suit

Court orders

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  1. 1.The Applicant's Notice of Motion is dismissed
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure RulesOrder 51 Rule 1
  • Environment and Land Court Act, 2011Section 16A
  • Environment and Land Court Act, 2011Section 13(2)
  • Constitution of KenyaArticle 159
  • Law of Succession Act, Cap 160 Laws of KenyaNot specified

Cases cited (4)

  • Edith Gichungu Koine v Stephen Njagi Thoithi
    (2014) eKLR
  • Stecol Corporation Limited v Susan Awuor Mudemb
    [2021] eKLR
  • Alfred Njau & Others v City Council of Nairobi
    (1982) KAR 229
  • Trovistik Union International & Another v Jane Mbeyu & Another
    (2008) IKLR (G & F) 730
On appeal from
Principal Magistrate's Court, Kerugoya
Kerugoya CM ELC Case No. 153 of 2018
Jurisdiction invoked
Section 79G Civil Procedure Act; Section 16A Environment and Land Court Act, 2011; Section 95 Civil Procedure Act; Article 159 Constitution of Kenya

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, "Munyi v Kabita (Environment & Land Miscellaneous Case 2 of 2024) [2024] KEELC 6364 (KLR)", Case Analysis (2024). Not stated in judgment (Kerugoya ELC application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6364/eng@2024-10-03

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