[2018] KEHC 5941 (KLR)
The court found that the applicant's conduct, including delay in moving the court and actions during execution, was self-defeating and did not justify the exercise of judicial discretion to grant leave to appeal out of time. The decree had already been executed, and the applicant had not sufficiently explained the...
Source-derived case information.
- Citation
- [2018] KEHC 5941 (KLR)
- Parties
- Applicant: Gathimba Njure Mwangi t/a Geenem Publishers; Respondent: Grace Wambui Waceke
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 340 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed with costs to the respondent
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Leave to Appeal Out of Time, Execution of Decree, Judicial Discretion, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gathimba Njure Mwangi t/a Geenem Publishers
Applicant
Grace Wambui Waceke
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time.
- 2 Whether the applicant's conduct and delay justify the exercise of the court's discretion in his favour.
Ratio Decidendi
The court found that the applicant's conduct, including delay in moving the court and actions during execution, was self-defeating and did not justify the exercise of judicial discretion to grant leave to appeal out of time. The decree had already been executed, and the applicant had not sufficiently explained the delay or denied the respondent's averments regarding payment and execution. Consequently, the application for leave to appeal out of time was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for leave to file an appeal out of time is dismissed.
- The applicant shall pay costs to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC APPLICATION 340 OF 2017
GATHIMBA NJURE MWANGI T/A
GEENEM PUBLISHERS ……………….…………………APPLICANT
VERSUS
GRACE WAMBUI WACEKE ………...…………………RESPODENT
RULING
There is a judgment in favour of the respondent herein against the applicant. The case in the lower court was as a result of an accident in which the respondent blamed the applicant. Following that judgment execution proceedings followed. Upon proclamation of the applicant’s goods, the applicant paid some money in part fulfilment of the decree.
There is now before me an application by way of Notice of Motion dated 23rd August, 2017 under Sections 79 G, 3A of the Civil Procedure Act and Order 42 of the Civil Procedure Rules for an order that leave be granted to the applicant to file an appeal out of time.
The application is supported by an affidavit sworn by the applicant herein. The application is opposed and there is a replying affidavit sworn by the respondent herein. Both parties filed submissions in argument of the application. The thrust of that application is that the judgment was delivered in the absence of the advocate for the applicant. There is also a complaint that liability was not apportioned and that the award of Kshs. 600,000/= was excessive in the circumstances of the case.
It is the respondent’s case that upon attachment of the applicant’s goods he paid Kshs. 287,000/= in cash and issued a cheque for Kshs. 700,000/= which cheque was however stopped by the applicant without any notice. There is also an averment in the replying affidavit that the applicant’s motor vehicle registration No. KBR 221E was sold by the auctioneer and the proceeds forwarded to the advocate for the respondent. The letter and the cheque has been annexed to the replying affidavit.
In effect, the decree has been executed and those averments have not been denied by the applicant. Whether or not there has been full payment is not an issue in this application. What is clear is that the conduct of the applicant and the delay in moving the court when considered against the record and the reply by the respondent are self-defeating.
I am unable to exercise the discretion of the court in favour of the applicant and therefore this application is dismissed with costs to the respondent.
Dated, signed and delivered at Nairobi this 30th day of May, 2018.
A.MBOGHOLI MSAGHA
JUDGE