SAMUEL NDIBA SENIOR & SAMUEL NDIBA JUNIOR (SUING AS LEGAL ADMINISTRATORS OF THE ESTATE OF PETER KIHARA GATHOGA DECEASED V. ESTHER WANGARI KIHARA

RULING

A. INTRODUCTION

[1] Before the court is a Preliminary Objection dated 23^rd March 2017, raised in respect of a petition of appeal dated 23^rd January 2017 seeking to set aside the decision of the Court of Appeal delivered on the 9^th of December 2016.

[2] The appeal is anchored on grounds that:

i. The learned judges failed to adopt an interpretation of the law that favors the enforcement of the Appellants right to sanctity of property contrary to Article 20(3) (b) of the Constitution by holding that the point of limitation of time was being raised for the first time on appeal, when the point had been pleaded in the Appellant’s defense.

ii. The learned judges failed to note that the Respondents had indeed opposed the point of limitation in its last amended defense and was estopped from arguing that the issue on limitation was being urged on appeal for the very first time.

iii. The learned judges failed to appreciate that there was a breach of Appellant’s right to a fair hearing contrary …