[2010] KEHC 2798 (KLR)
The court found that the application was fundamentally defective because it was supported by an affidavit sworn four years prior to the application, rendering it incapable of supporting the present request. Additionally, the annexures referenced in the affidavit were neither attached nor marked as exhibits, and...
Source-derived case information.
- Citation
- [2010] KEHC 2798 (KLR)
- Parties
- Applicant: Jacob Njeru Mugo; Respondent: Bernard Njeru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 158 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Leave to Appeal Out of Time, Affidavit Requirements, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacob Njeru Mugo
Applicant
Bernard Njeru
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the application for leave to appeal out of time is properly supported by a valid affidavit.
- 2 Whether the delay in filing the application has been adequately explained.
- 3 Whether the application constitutes an abuse of the court process.
Ratio Decidendi
The court found that the application was fundamentally defective because it was supported by an affidavit sworn four years prior to the application, rendering it incapable of supporting the present request. Additionally, the annexures referenced in the affidavit were neither attached nor marked as exhibits, and there was no nexus between the affidavit and the application. The applicant failed to explain the delay of four years in bringing the application and did not disclose the outcome of a previous similar application. The court concluded that the application was an abuse of the court process and that the applicant had not demonstrated seriousness or merit in seeking to appeal....
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 21/6/2005 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Miscellaneous Civil Application 158 of 2005
JACOB NJERU MUGO…………………………………………………..APPLICANT
VERSUS
BERNARD NJERU……………………………………………………..RESPONDENT
R U L I N G
The application at bar is dated 2/6/2005. It seeks the leave of this court for the applicant to file an appeal out of time.The same is supported by the affidavit of E.M Njiru dated 20/6/2001. On that ground alone, this application should be struck out.I say so because an affidavit which was sworn 4 years before the application was filed cannot support the same.I also note that the documents referred to in the supporting affidavit i.e the request for proceedings, the certificate of delay and the draft Memorandum of Appeal referred to have not been commissioned and they have not actually been marked at all as exhibits.They have no relationship or nexus to the supporting affidavit whatsoever. The supporting affidavit on the other hand refers to annexures ‘EMNI’, EMNIIand EMNIII. Such annexures are not in this file or attached to the affidavit in question.
Further, from the replying affidavit, it is clear that the Applicant had filed HC Misc. Application No. 64 of 2001 in June 2001. That application marked Annexure ‘BN1’must therefore have been the one which was supported by the affidavit in question.The applicant has not disclosed to this court what could have happened to that application.He has not therefore come to court with clean hands.
In any event, if the court was to assume that there was no such application, that would mean that the applicant brought this Application 4 years after Judgment and that delay has not been explained.In my view, this application is an abuse of the court process.The orders south are not merited.The applicant does not appear serious at all in his intent to appeal against the lower court’s decision.I must in the circumstances dismiss this Application which I hereby do.The application dated 21/6/2005 is hereby dismissed with costs to the Respondent.
W. KARANJA
JUDGE
Delivered, dated and signed at Embu this 24th day of May 2010.
In presence of:- Mr. Utuku for Respondent.