[2019] KEHC 1359 (KLR)
The court found that the applicant's current application for leave to appeal out of time was incompetent because the applicant had not properly regularized his position to act in person, as previously directed by the court when dismissing his earlier application. The mere filing of a Notice to Act in Person was...
Source-derived case information.
- Citation
- [2019] KEHC 1359 (KLR)
- Parties
- Applicant: Isaiah Otieno Osodo; Respondent: Alliance One Tobacco (K) Ltd; Respondent: Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 25 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application struck out as incompetent with costs to the first respondent
- Judges
- AC Mrima
- Legal Topics
- Leave to Appeal Out of Time, Striking Out Incompetent Application, Costs Award, Personal Representation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaiah Otieno Osodo
Applicant
Alliance One Tobacco (K) Ltd
Respondent
Hon. Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant's application for leave to appeal out of time is competent in light of previous dismissal for irregular representation.
- 2 Whether the applicant has regularized his position to act in person as directed by the court.
Ratio Decidendi
The court found that the applicant's current application for leave to appeal out of time was incompetent because the applicant had not properly regularized his position to act in person, as previously directed by the court when dismissing his earlier application. The mere filing of a Notice to Act in Person was insufficient without first obtaining the court's leave, given that the applicant had been represented by counsel in the lower court. The court emphasized that ignorance of the law or reliance on unqualified assistance does not excuse non-compliance with procedural requirements. Consequently, the application was struck out with costs awarded to the first respondent.
Court Disposition
application struck out as incompetent with costs to the first respondent
Orders
- The application is struck out as incompetent.
- The applicant shall pay costs of KES 10,000 to the first respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
[Coram: A. C. Mrima, J.]
MISC. CIVIL APPLN. NO. 25 OF 2019
ISAIAH OTIENO OSODO...............................................................APPLICANT
-VERSUS-
1. ALLIANCE ONE TOBACCO (K) LTD
2. HON. ATTORNEY GENERAL............................................RESPONDENTS
RULING
1. The Applicant herein, Isaiah Otieno Osodo,filed an undated application by way of the Notice of Motion on 11/04/2019. The application sought leave to file an appeal out of time in respect of a judgment delivered on 21/09/2017 by Hon. M. M. Wachira, Senior Resident Magistrate. I will hereinafter refer to the undated Notice of Motion as ‘the application’.
2. The application was made on the grounds appearing on the face thereof. It was supported by the Affidavit sworn by the Applicant.
3. The First Respondent opposed the application. It filed a Replying Affidavit sworn by its Counsel on 05/08/2019 and evenly filed in Court.
4. The parties agreed that the application be heard by way of the Court’s reliance on the application and the Replying Affidavit on record. The Applicant appeared in person whereas the First Respondent was represented by Counsel. The Second Respondent did not participate in the hearing.
5. This Court was reminded by the First Respondent that the Applicant had filed a like application in Misc. Civil Application No. 288 of 2018 on 01/10/2018. That, the matter was dismissed on 01/04/2019 on the ground that the Applicant was represented by Counsel in the lower court case and he had not sought leave of the Court to appear in person. The Applicant was directed to first regularize his position. The Applicant did not object to the deposition.
6. The Applicant then filed the application about 10 days later. Alongside the application he filed a Notice to Act in Person.
7. To me, the issue which rendered Misc. Civil Application No. 288 of 2018 incompetent still remain unaddressed. It is clear that the Applicant is either ignorant of the law or is being ‘assisted’ by someone who is devoid of legal knowledge.
8. The application is hence incompetent. It is hereby struck out with costs. I assess the costs at Kshs. 10,000/= (Ten Thousands Only). The costs shall be paid to the First Respondent only since the Second Respondent did not participate in the hearing. The Applicant shall not file any like application unless he complies with payment of the costs herein.
Orders accordingly.
DELIVERED, DATED and SIGNED at MIGORI this 10th day of December, 2019.
A. C. MRIMA
JUDGE
Judgment delivered in open Court and in the presence of: -
Isaiah Otieno Osodo,the Applicant in person.
Mr. AbisaiCounsel instructed by Messrs. Abisai & Company Advocates for the First Respondent.
Evelyne Nyauke- Court Assistant