[2004] KEHC 493 (KLR)
The court found that the applicant failed to annex the defence and proceedings from the lower court, which are necessary for a fair determination of the application for enlargement of time to appeal. The absence of these documents rendered the application incompetent. The court emphasized that, especially where a...
Source-derived case information.
- Citation
- [2004] KEHC 493 (KLR)
- Parties
- Applicant: Catherine Kiingwa; Respondent: Rhodes Masaa Jane
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous 17 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Enlarge Time for Filing Appeal
- Outcome
- application struck out as incompetent with costs to the respondent
- Legal Topics
- Extension of Time, Appeals, Procedural Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Catherine Kiingwa
Applicant
Rhodes Masaa Jane
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Enlarge Time for Filing Appeal
Legal Issues
- 1 Whether the applicant is entitled to an enlargement of time to file an appeal against the lower court's order.
- 2 Whether the application is competent in the absence of necessary documents, specifically the defence and proceedings from the lower court.
Ratio Decidendi
The court found that the applicant failed to annex the defence and proceedings from the lower court, which are necessary for a fair determination of the application for enlargement of time to appeal. The absence of these documents rendered the application incompetent. The court emphasized that, especially where a litigant is acting in person, it is essential to provide all relevant materials to enable the court to consider the application on its merits. Consequently, the application was struck out as incompetent, but the applicant was granted liberty to file a fresh application with all necessary documents annexed.
Court Disposition
application struck out as incompetent with costs to the respondent
Orders
- The application is struck out as incompetent.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL MISCELLANEOUS APP. NO. 17 OF 2004CATHERINE KIINGWA ::::::::::::::::::::::: APPLICANTVERSUSRHODES MASAA JANE ::::::::::::::::::::: RESPONDENTR U L I N G
The applicant acting in person brought this application under Order 49 Rule 5 Civil Procedure Rules and Section 3A Civil Procedure Act asking this court to enlarge the time for filing of an appeal against the Mwingi Resident Magistrate’s Court No. 17 of 2001 and costs be in the cause. The grounds upon which the application is brought are found on the face of the application and supported by an affidavit and another further affidavit. The applicant wants to appeal against the order of the lower court dated 31. 12. 2003.
The application was opposed. The applicant annexed a copy of the ruling which she intends to challenge on appeal but not the rest of the proceedings. The applicant was not heard on her defence and it would be crucial for the court to look at the defence that had been filed in the lower court. Without the said defence court can not reach a fair decision. Applicant was acting in person and the court feels that it would be unfair for the court to go into the merits of the application without according her a chance to avail the proceedings of lower court which the court needs to look at. Under the circumstances the court will strike out this application as being incompetent and with costs to the respondent. The applicant is however at liberty to file another application and annex all the necessary documents for the court to consider on merit. Orders accordingly.
Dated, read and delivered at Machakos this 5th day of May, 2004.
R. V. WENDOH
JUDGE