[2008] KEHC 2647 (KLR)
The court found that the applicant experienced a significant delay in obtaining the necessary court proceedings, as evidenced by the certificate of delay indicating a two-year period. This delay was not attributable to the applicant's own actions. Furthermore, the applicant's complaint involved an alleged violation...
Source-derived case information.
- Citation
- [2008] KEHC 2647 (KLR)
- Parties
- Applicant: Benard Wabwire Wafula; Respondent: Emmanuel Wekesa Wasike; Respondent: Hon. The Attorney General
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 224 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Application for Leave to File Suit Out of Time
- Outcome
- application allowed
- Judges
- J Karanja
- Legal Topics
- Right to Be Presented in Court, Delay in Proceedings, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Wabwire Wafula
Applicant
Emmanuel Wekesa Wasike
Respondent
Hon. The Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file suit out of time due to delay in obtaining proceedings.
- 2 Whether the applicant's constitutional right to be presented before a court within 24 hours of arrest was violated.
Ratio Decidendi
The court found that the applicant experienced a significant delay in obtaining the necessary court proceedings, as evidenced by the certificate of delay indicating a two-year period. This delay was not attributable to the applicant's own actions. Furthermore, the applicant's complaint involved an alleged violation of his constitutional right to be presented before a court within 24 hours of arrest. The court held that, in the interests of justice and to avoid unjustly barring the applicant from pursuing his claim, leave should be granted to file the suit out of time. The court emphasized that procedural technicalities should not override substantive justice, especially where...
Court Disposition
application allowed
Orders
- The applicant is granted leave to file the suit.
- The suit must be filed within 15 days from the date of this ruling.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
Misc 224 of 2007
BENARD WABWIREWAFULA ::::::::::::::::::::::::: APPLICANT
VRS
EMMANUEL WEKESA WASIKE
HON. THE ATTORNEY GENERAL :::::::::::::::::::::::: RESPONDENTS
RULING OF THE COURT
I have heard the ex-parte application before me. I have considered the contents of the Supporting Affidavit along with the annexures. I have seen the certificate of delay showing that proceedings took 2 years to be supplied to him. I note that after receiving the proceedings he did instruct counsel who nonetheless did not file the suit promptly. Given the nature of his complaint which does touch on his constitutional right to be presented to a court of law within 24 hours of arrest. I feel that he should not be locked out and should therefore be allowed to pursue his claim. Accordingly, I allow the application and direct that the suit be filed without further delay and in any case not more than 15 days from the date of this ruling.
W. KARANJA
JUDGE
12/2/2008