[2006] KEHC 1037 (KLR)
The court found that the applicant failed to provide sufficient reasons for the delay in filing the appeal, which was nearly two years after judgment was delivered. The delay was attributed to the applicant's counsel, but the court was not persuaded that this justified the extension sought. The court also considered...
Source-derived case information.
- Citation
- [2006] KEHC 1037 (KLR)
- Parties
- Applicant: Habil Imenje (Suing as representative of the late Howard Omondi Musasia); Respondent: Lorian King’oo & 3 Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1389 of 2001
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- JL Osiemo
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Judicial Discretion, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Habil Imenje (Suing as representative of the late Howard Omondi Musasia)
Applicant
Lorian King’oo & 3 Others
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has shown sufficient reason for the delay in filing the appeal out of time.
- 2 Whether the court should exercise its discretion to grant leave to appeal out of time in the circumstances of this case.
Ratio Decidendi
The court found that the applicant failed to provide sufficient reasons for the delay in filing the appeal, which was nearly two years after judgment was delivered. The delay was attributed to the applicant's counsel, but the court was not persuaded that this justified the extension sought. The court also considered that the original suit had been dismissed for lack of evidence, with the only eyewitness deceased, and that the cause of action dated back approximately 14 years. Weighing these factors, the court declined to exercise its discretion to grant leave to appeal out of time and dismissed the application with costs to the respondent.
Court Disposition
application dismissed
Orders
- The applicant's application for leave to appeal out of time is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
Misc Appli 1389 of 2001
HABIL IMENJE (Suing as representative of the late
HOWARD OMONDI MUSASIA (DECEASED)…………….......................…………PLAINTIFF
VERSUS
LORIAN KING’OO & 3 OTHERS………………......................……………..RESPONDENTS
RULING
The applicant by way of this Notice of Motion dated 9th November 2001 and brought under Section 3A and 79G seeks leave to file Appeal out of time. It is based on the ground that it is in the interest of justice that the intended appeal be admitted out of time since the applicant is desirous of lodging appeal. The application is also supported by an affidavit sworn by Francis Etole counsel for the applicant who avers that the appeal was not filed in time because instructions were received late and proceedings took time to be obtained.
The claim in this suit arises out of a traffic road accident which occurred on 25th June 1992 along Mathenge Road Lower Kabete Nairobi involving motor vehicle registration No. KZE 568.
The suit was filed on 11th January 1994 seeking general damages as well as special damages plus costs of the suit. This was two years later. The suit went through a full trial and was dismissed for lack of evidence to support the claim since the only eye witness had passed away. Judgment was delivered on 19th January 2000 but this Notice of Motion for leave to appeal out of time was filed on 19th November 2001 which was nearly 2 years after the judgment was delivered. The delay is blamed on the counsels who had been instructed to handle the suit.
The application is opposed by the defendant. Miss Wanga for the respondent submitted that the application has no merit. The applicant has not shown sufficient reason to enable the court to exercise its discretion in his favour.
The applicant is guilty of non disclosure of full of material facts. Before the court exercises its discretion in favour of the applicant, it takes into account the length of delay, the reasons for delay, the prejudice to be suffered by the defendant and the chances of the appeal succeeding. In the instant case the accident occurred on 25th June 1992. It took the plaintiff about 2 years to file this suit which was filed on 11th January 1994.
The suit was heard and judgment delivered on 19th January 2000 in which the trial magistrate dismissed the plaintiff’s case for lack of evidence and to which the plaintiff admits that the only eye eyewitness had passed away. After the dismissal of this suit, the plaintiff did not prefer the appeal within the statutory period. It was until 19th January 2001 another 2 years after the judgment when he brought this application for leave to appeal out of time.
Taking all these into account and the fact that the plaintiff’s suit was dismissed for lack of evidence and the fact that the cause of action took place about 14 years ago, I am not persuaded to exercise my discretion in favour of the applicant and I dismiss the applicant’s application with costs to the respondent.
Dated and delivered at Nairobi this 25th day of October 2006
J.L.A. OSIEMO
JUDGE