[2005] KEHC 194 (KLR)
The court found that the applicant had not acted in good faith and had failed to diligently prosecute his application for leave to appeal out of time. The applicant's explanations for the delay were inconsistent and unconvincing, and his conduct demonstrated an intention to delay justice and deny the respondent the...
Source-derived case information.
- Citation
- [2005] KEHC 194 (KLR)
- Parties
- Applicant: Gitahi Gakunga; Respondent: Wambugu Gakunga
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 145 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed with costs to the respondent
- Judges
- JM Khamoni
- Legal Topics
- Leave to Appeal Out of Time, Land Disputes Tribunal Jurisdiction, Delay in Prosecution, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Gitahi Gakunga
Applicant
Wambugu Gakunga
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 from the decision of the Provincial Lands Dispute Appeal Tribunal.
- 2 Whether the applicant's conduct and delay justify the exercise of the court's discretion in his favour.
- 3 Whether the application is brought in good faith.
Ratio Decidendi
The court found that the applicant had not acted in good faith and had failed to diligently prosecute his application for leave to appeal out of time. The applicant's explanations for the delay were inconsistent and unconvincing, and his conduct demonstrated an intention to delay justice and deny the respondent the benefit of a judgment in his favour. The court held that such conduct should not be tolerated and that the applicant had sufficiently delayed justice for his own purposes. Consequently, the application for leave to appeal out of time was dismissed, and the applicant was ordered to pay the costs of the application to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The Notice of Motion dated 28th July 2003 is dismissed.
- The applicant shall pay the costs of the application to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Misc Appli 145 of 2003
GITAHI GAKUNGA……………………………APPLICANT
Versus
WAMBUGU GAKUNGA………..….………RESPONDENT
RULING
The Applicant having filed his Notice of Motion herein dated 28th July 2003 containing five prayers, three of the last prayers excluding prayer five were struck out on 30th July 2003, leaving prayer one and prayer five only for hearing. In prayer one, the Applicant seeks orders:
“THAT the applicant be given leave to file appeal from the decision of the Provincial Lands Dispute Appeal Tribunal Nyeri No. 170 of 2002 out of time.”
Prayer five is for costs.
The problem with the Applicant is that he is not consistent in his filed documents as well as his speech. Ground (a) in the Notice of Motion therefore states that the Applicant is aggrieved by the decision of the Provincial Land Disputes Tribunal in Appeal No. 170 of 2003. The Applicant goes on to state in paragraph 2 of his supporting affidavit dated 28th July 2003 that he is lodging an appeal against the decision of the Provincial Lands Appeals Tribunal in Appeal Number 170 of 2000 and repeats the same appeal number in paragraph 3(c).
Listening to the Applicant orally addressing the court made the matter worse as the Applicant told the court he was in jail when the Appeals’ Committee – correctly it is the Provincial Land Tribunal Appeals Committee, Nyeri – decided the case. He went on to say that when he came out of jail, he filed a case referred to as Award No. 4 of 2001 in the Chief Magistrate’s Court at Nyeri, and that he appealed in the year 2003. He was sick. There was a card. The case was No. 145 of 2002 and that judgment in that case was delivered on 18th November 2003 by this court and that to-day 3rd March 2005 was his first time to see an advocate appearing in this matter. He said that there should be no advocate in this matter because he does not have one and that therefore the other party should not have an advocate.
Mr. Rika, Counsel representing the Respondent opposed the Applicant’s application pointing out that the application has so many anomalies that at the end you cannot know what the application is for. He added that the Applicant is the one who took the Respondent to Land Tribunals and having lost the case he should not be heard now complaining that the Tribunals had no jurisdiction.
I have looked at the record before me in the light of what has been stated before me and do agree absolutely with what Mr. Rika said. I wish to add that the Applicant having failed to appeal in time filed the Notice of Motion dated 28th July 2003 on 30th July 2003 to go and sleep for prosecution of that application to take place in March 2005. That is a clear manifestation of the conduct of a party who after filing an appeal will never prosecute it resulting into delay of justice. I hold the view that he has delayed justice sufficiently for his purpose and should no longer be permitted to cause further delay of justice. This application is not brought in good faith and the Applicant’s intention is to wrongfully deny the Respondent the fruits of a judgment in the Respondent’s favour.
This court should not tolerate that conduct of things and therefore the surviving prayers in the Notice of Motion dated 28th July 2003 be and are hereby dismissed.
The Applicant to pay costs of the application to the Respondent.
Dated this 11th day of March 2005.
J. M. KHAMONI
JUDGE