James Macharia Gichuki v Harry Lewis Nangurai
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of appeal should be struck out for failure to institute the appeal within the prescribed time or prosecute it expeditiously under the consent order
- 2.Whether the applicant, as assignee of the judgment, has locus standi to bring the application
Key legal issues
#Locus standi of an assignee of a judgment to seek striking out of a notice of appeal
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
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.
Assignment of interest in a judgment before delivery
The court made no determination on whether such an assignment is valid, as no authority was produced by either side
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.
Legal principles established
#- 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
#- 1.The application (motion to strike out the notice of appeal) is dismissed
- 2.The applicant must pay the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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)
Relief refused
#Striking out of the respondent's notice of appeal
The applicant lacked locus standi, having neither applied in proper form to be joined as a party to the appeal nor been given leave to appear
Costs of the motion
Application dismissed with costs against the applicant
Costs
The applicant must pay the costs of the application
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The requirement as to locus standi in an application for a prorogative order is dealt with more liberally by a court than that it is in inter parties proceedings: See Lord Wilberforce in Gouriet v Union of Post Office Workers, (1978) AC 435 but it cannot be overcome by consent of the parties.
Until he does so, he has no interest in whether the appeal has been filed in time or is being prosecuted expeditiously.
The application must be dismissed and the applicant must pay the cost of it.
Issues in the judgment
#Coram names three judges but only two are recorded as deciding; Potter JA's position is unexplained
Text contains typographical corruption affecting quotes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.