[2008] KEHC 2779 (KLR)
The court found that the applicant's explanation for the delay, namely financial constraints due to his daughter's illness and inability to pay court fees, was genuine and made on oath. The court exercised its discretion in favour of the applicant, noting that the interested party would suffer no loss from the...
Source-derived case information.
- Citation
- [2008] KEHC 2779 (KLR)
- Parties
- Applicant: Emmanuel Gathogo; Respondent: Land Disputes Tribunal Kirinyaga District; Respondent: Senior Resident Magistrate Kerugoya
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 191 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to File Notice of Motion
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Judicial Review Procedure, Land Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel Gathogo
Applicant
Land Disputes Tribunal Kirinyaga District
Respondent
Senior Resident Magistrate Kerugoya
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to File Notice of Motion
Legal Issues
- 1 Whether the applicant has provided sufficient cause for extension of time to file the Notice of Motion.
- 2 Whether the delay in filing was inordinate or excusable.
- 3 Whether the tribunal had jurisdiction over registered land.
Ratio Decidendi
The court found that the applicant's explanation for the delay, namely financial constraints due to his daughter's illness and inability to pay court fees, was genuine and made on oath. The court exercised its discretion in favour of the applicant, noting that the interested party would suffer no loss from the extension. The court emphasized that the matter related to title to land, and the applicant should be allowed to proceed with his application for judicial review.
Court Disposition
application allowed
Orders
- The application for extension of time is allowed.
- The proposed Notice of Motion shall be filed and issued within the next seven days from today.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
Misc Civ Appli 191 of 2006
EMMANUEL GATHOGO……………………....……….....................……….APPLICANT
VERSUS
LAND DISPUTES TRIBUNAL KIRINYAGA DISTRICT………….1ST RESPONDENT
SENIOR RESIDENT MAGISTRATE KERUGOYA….....................2ND RESPONDENT
RULING
Notice of Motion dated 22/10/2007 seeks time in which to file Notice of Motion in Judicial Proceedings for which leave was granted on 22/12/2006. The court ordered the application to be filed within 21 days in accordance with Order 53 Rule 3 (1). The delay in complying with court order was the inability by the applicant to raise funds for court fees. The applicant says he is a small time trader and at the time his daughter was in hospital for surgery he could not raise the court fees required in the sum of Shs.6,115/=hence the delay. He says his application has high chances of success. The tribunal had no jurisdiction to deal with his registered land. The application is opposed by interested party saying there is inordinate delay and the allegations as to the illness of the Applicant’s child are not substantiated.
I have considered submissions made and that dispute relates to title land. The matter of extension of time is discretionary. It is my view that the explanation made by Applicant are genuine as it is made on oath. I therefore exercise my discretion in his favour. The interested party will suffer no loss. The application is allowed and orders granted as prayed. The proposed Notice of Motion shall be filed and issued within the next seven days from today.
Dated this 22nd of February, 2008.
J. N. KHAMINWA
JUDGE
22/2/2008
Khaminwa – Judge
Njue – Clerk
Mercy HB for Kariithi
Emmanuel Gathogo present in person
Read in open court in his presence.
J. N. KHAMINWA
JUDGE