[2009] KEHC 1928 (KLR)
The court found that the applicant failed to provide a good or sufficient explanation for the inordinate delay in lodging the appeal. Even if the period required for obtaining certified copies of the judgment and proceedings was excused, there was an unexplained delay of about five months after the documents were...
Source-derived case information.
- Citation
- [2009] KEHC 1928 (KLR)
- Parties
- Applicant: Esther Wanjiru; Respondent: Joseph Wakaratu Karumba; Respondent: Francis Karumwa Gathekia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 673 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Application for Extension of Time to Appeal
- Outcome
- application dismissed
- Judges
- GG Okwengu
- Legal Topics
- Extension of Time, Appeals Out of Time, Sufficient Cause, Delay in Filing, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Wanjiru
Applicant
Joseph Wakaratu Karumba
Respondent
Francis Karumwa Gathekia
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has demonstrated good and sufficient cause for failing to file the appeal within the prescribed time.
- 2 Whether the delay in filing the application for extension of time is justified.
Ratio Decidendi
The court found that the applicant failed to provide a good or sufficient explanation for the inordinate delay in lodging the appeal. Even if the period required for obtaining certified copies of the judgment and proceedings was excused, there was an unexplained delay of about five months after the documents were ready before the application for extension of time was filed. The applicant's counsel's assertion of financial hardship was not supported by affidavit evidence. Consequently, the court held that there was no justification for granting the application for extension of time to file the appeal and dismissed the application.
Court Disposition
application dismissed
Orders
- The application for extension of time to file the appeal is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 673 of 2008
ESTHER WANJIRU….…..……….……….……...........APPLICANT
VERSUS
JOSEPH WAKARATU KARUMBA…………1ST RESPONDENT
FRANCIS KARUMWA GATHEKIA……....….2ND RESPONDENT
R U L I N G
1. By a Notice of Motion dated 4th November, 2008, Esther Wanjiru, the applicant herein seeks to have time enlarged to enable her file an appeal against the judgment and decree of the Principal Magistrate in Milimani CMCC No. 4045 of 2004.
2. In her supporting affidavit sworn on 4th November, 2008, the applicant has explained that the judgment subject of the intended appeal was delivered on 28th June, 2006. That upon delivery of the judgment the applicant applied for certified copies of judgment and proceedings to enable her file an appeal but it was not until 10th July 2007 when the proceedings were ready for collection. The applicant explains that she has a good chance of succeeding in appeal. She has annexed a draft copy of the intended memorandum of appeal and prays that the Court do allow her application to enable her pursue her appeal.
3. Under Section 79G of the Civil Procedure Act, this Court has powers to admit an appeal out of time, provided, the appellant satisfies the Court that she has good and sufficient cause for not filing the appeal in time. Order XLIX Rule 5 of the Civil Procedure Rules, also allows the Court to enlarge time for the doing of any act or taking of any proceedings under the rules, as the justice of the case may require.
4. In this case, although it is alleged that certified copies of the judgment and proceedings were applied for after delivery of the judgment, the letter dated 10th July, 2007 which is annexed to the applicant’s affidavit refers to a letter dated 3rd June, 2006. That implies that the application for certified copies of the proceedings and judgment were made well after the 30 days period had expired.
5. Moreover, even assuming that the Court were to give the benefit of doubts to the applicant and assume that the period from 28th June to 10th July, 2007 were necessary for the preparation of the certified copies of proceedings and judgment, the current application was not made until 4th November, 2008 which is about 5 months after the proceedings and judgment were ready for collection. The applicant has not given any explanation for this delay. An attempt was made by the applicant’s counsel to explain from the bar that the applicant is a single parent of little means. However, there is nothing in the applicant’s affidavit to support that contention.
6. I find that the applicant has not given any good explanation or sufficient cause for the inordinate delay in lodging her appeal. Accordingly, I find no justification for granting her application for extension of time to file the appeal. The application is therefore, dismissed.
Dated and delivered this 29th day of July, 2009
H. M. OKWENGU
JUDGE
In the presence of: -
Miss Yator for the Applicant
Advocate for the respondent, absent