[2015] KEHC 8544 (KLR)
The court found that the applicant failed to provide any material or evidence to explain the delay of over five years in filing the appeal. There was no indication that the court file was missing or that the applicant took any steps to notify the court of such an issue. The court held that the delay was inordinate...
Source-derived case information.
- Citation
- [2015] KEHC 8544 (KLR)
- Parties
- Applicant: Collson Mikwa Owuor; Respondent: John Onyango Ogutu
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 9 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- DAS Majanja
- Legal Topics
- Extension of Time, Appeals Out of Time, Discretion of Court, Good and Sufficient Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Collson Mikwa Owuor
Applicant
John Onyango Ogutu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has shown good and sufficient cause for the delay in filing the appeal out of time.
- 2 Whether the court should exercise its discretion to extend time for filing the appeal.
Ratio Decidendi
The court found that the applicant failed to provide any material or evidence to explain the delay of over five years in filing the appeal. There was no indication that the court file was missing or that the applicant took any steps to notify the court of such an issue. The court held that the delay was inordinate and prejudicial to the respondent. Consequently, the applicant did not demonstrate good and sufficient cause as required under section 79G of the Civil Procedure Act. The court therefore exercised its discretion to dismiss the application for extension of time.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for extension of time to lodge an appeal out of time is dismissed.
- The applicant shall pay costs to the respondent assessed at Kshs. 5,000.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT HOMA BAY
MISC. APPLICATION NO. 9 OF 2015
BETWEEN
COLLSON MIKWA OWUOR …………………………………………………… APPLICANT
AND
JOHN ONYANGO OGUTU ………………………………………..…………… RESPONDENT
RULING
1. The application before the court is dated 19th November 2015 and it is for extension of time to lodge an appeal out of time from the judgment delivered on 15th September 2011 in Rongo SRM’s Court Civil Case No. 146 of 2008 (John Onyango Ogutu v Collson Mikwa Owuor).
2. From the depositions filed by the applicant there is nothing to show why the appeal was not filed within 30 days from the date the judgment was delivered on 15th September 2011. There is no evidence that the court file was missing or that the applicant took any steps to inform the court that it was missing. In reality over 5 years of slumber by the applicant are unaccounted for and for all intents and purposes the delay is inordinate and prejudicial to the respondent.
3. This court can only exercise its discretion on the basis of material before it. I therefore find and hold that the applicant has failed to show, “good and sufficient cause” within the meaning of the proviso to section 79G of the Civil Procedure Act (Chapter 21 of the Laws of Kenya)
4. The application is dismissed with costs to the respondent assessed at Kshs. 5,000/-.
DATEDandDELIVEREDatHOMA BAY this 22nd day of December 2015.
D.S. MAJANJA
JUDGE
Mr Kirui instructed by Odero Nyakwana & Company Advocates for the applicant.
Mr Otieno instructed by O. M. Otieno & Company Advocates for the respondent.