[2019] KEHC 1681 (KLR)
The court found that the applicant was represented by counsel at the time judgment was delivered, and therefore could not claim lack of notice. There was no evidence of correspondence or effort by the applicant's advocate to trace the allegedly missing court file. The applicant failed to provide a sufficient...
Source-derived case information.
- Citation
- [2019] KEHC 1681 (KLR)
- Parties
- Applicant: Clifford Omondi Ooko; Respondent: Josphat Ndwiga
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 171 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- application dismissed
- Judges
- RB Ngetich
- Legal Topics
- Extension of Time, Appeals Out of Time, Judgment Delivery Notice, Court File Missing, Delay Explanation, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clifford Omondi Ooko
Applicant
Josphat Ndwiga
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient cause to warrant extension of time to file an appeal out of time.
- 2 Whether the applicant was aware or ought to have been aware of the delivery of judgment.
- 3 Whether the delay in filing the application was sufficiently explained.
Ratio Decidendi
The court found that the applicant was represented by counsel at the time judgment was delivered, and therefore could not claim lack of notice. There was no evidence of correspondence or effort by the applicant's advocate to trace the allegedly missing court file. The applicant failed to provide a sufficient explanation for the delay of nearly one year in seeking leave to appeal out of time. Furthermore, the draft memorandum of appeal did not disclose clear issues that would persuade the court to interfere with the lower court's findings. Consequently, the court held that the applicant had not demonstrated sufficient cause to warrant the exercise of discretion in his favor and dismissed...
Court Disposition
application dismissed
Orders
- Application dated 28th June 2018 is dismissed.
- Costs to the respondent.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
MISC. APPLICATION NO. 171 OF 2018
CLIFFORD OMONDI OOKO..................................................APPLICANT
-VERSUS-
JOSPHAT NDWIGA..............................................................RESPONDENT
RULING
1. This is a ruling on application dated 6th November 2017. It seeks leave to file appeal out of time.
2. Grounds on the face of the application are that judgment in Nakuru CMCC No.1412 of 2015 was not delivered on 5th September 2017as scheduled; that the court delivered judgment on 14th November 2017 without notice.
3. That Ms.Kibagendi who was in court for other matters took terms of the judgment after being told that the applicant was represented by the firm of Gekonga & Company Advocates but inadvertently failed to forward details of judgment for further action; and upon follow up of the matter by the applicant the file could not be traced in the registry.
4. The application is supported by application sworn by the applicant on 28th June 2018. He restated grounds on the face of the application.
5. Applicant further averred that the court file was found on 22nd August 2018 that is when he was immediately advised of the terms of the judgment.
6. Applicant averred that he is willing to abide by conditions given by the court and sought opportunity to be allowed to appeal out of time.
7. In support of this application further, Cyrus Sagana a clerk with the firm of Gekonga and Company Advocates swore affidavit dated 28th June 2018.
8. He averred that when he went to chief magistrate’s registry the court file could not be traced and on 22nd May 2018, he was informed by the registry that the file was found inside a closed file; and upon retrieval of the file, he perused it and found that judgment has been delivered. Advocate Violet Kibagendialso swore an affidavit dated 28th June 2018.
9. In response the respondent filed ground of opposition dated 27th July 2018. Respondent stated that the applicant was duly represented during delivery of judgment and has no excuse for not filing memorandum of appeal; further that there is inordinate delay in filing this application even after the alleged trace of the court file on 22nd May 2018 which has not been explained; and proposed draft does not disclose arguable grounds thus application is an abuse of the court process.
ANALYSIS AND DETERMINATION
10. From judgment attached to the application, I note that judgment in Nakuru CMCC No.1412 of 2015 was delivered on 14th November 2017.
11. From her affidavit, Kibagendi Advocate works with the firm of Gekonga which represented the applicant in the lower court matter. She was present when judgment was delivered. Even if notice of delivery was not issued plaintiff was represented and cannot say he was not aware of delivery of judgment.
12. On the issue of missing file, there is no correspondence to confirm that the court file was missing or the applicant’s Advocate made efforts to trace the file.
13. It was the responsibility of the applicant to follow up his matter through his advocate to know the position and if his efforts were frustrated in any way, that should have been demonstrated. I have not seen sufficient explanation for delay for a period of one year.
14. I have also perused and considered the draft memorandum of appeal and in my view, the applicant does not clearly bring out issues he intends to raise in the appeal which may persuade the court to interfere with the lower court finding.
15. From the foregoing, I see no merit in this application.
16. FINAL ORDERS
1. Application dated 28th June 2018 is dismissed.
2. Costs to the respondent.
Ruling dated, signed and delivered at Nakuru this 28th day of November, 2019.
........................................
RACHEL NGETICH
JUDGE
IN THE PRESENCE OF:-
Court Assistants – Schola and Jeniffer
Cheruto holding brief for Gekonga Counsel for Applicant
No appearance for Counsel for respondent