[2005] KEHC 2828 (KLR)
The court found that while there was some delay by the court in supplying the proceedings and judgment, the applicant took an additional four months before bringing the application and failed to provide a satisfactory explanation for this further delay. The applicant did not disclose his means or explain why he did...
Source-derived case information.
- Citation
- [2005] KEHC 2828 (KLR)
- Parties
- Applicant: Johnson Mburu Muiruri; Defendant: Julius Kang’ara Ndegwa
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 127 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application dismissed with costs
- Judges
- GG Okwengu
- Legal Topics
- Extension of Time, Appeals Out of Time, Judicial Discretion, Delay in Filing, 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
Johnson Mburu Muiruri
Applicant
Julius Kang’ara Ndegwa
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient cause for the delay in filing the appeal out of time.
- 2 Whether the court should exercise its discretion to enlarge time for filing the appeal.
Ratio Decidendi
The court found that while there was some delay by the court in supplying the proceedings and judgment, the applicant took an additional four months before bringing the application and failed to provide a satisfactory explanation for this further delay. The applicant did not disclose his means or explain why he did not file the appeal in person, despite being capable of initiating private proceedings. The court held that the applicant had not demonstrated sufficient cause for the delay and that the discretion to enlarge time should not be exercised in his favour. Consequently, the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for enlargement of time to file appeal out of time is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
HIGH COURT MISC. NO. 127 OF 2004
JOHNSON MBURU MUIRURI ………………………………………. APPLICANT
VERSUS
JULIUS KANG’ARA NDEGWA ……………………………………… DEFENDANT
R U L I N G
Jackson Mburu Muiruri seeks leave of this court to have time for filing his appeal against the judgment and decree in Muranga SPMCC 283 of 2002 enlarged so that he is allowed to file his appeal out of time.
The applicant contends that the delay was partly due to the time taken by the court in supplying the proceedings and judgment and also the inability of the applicant to raise funds to engage an advocate to pursue the appeal on his behalf.
The Respondent has through his advocate strenuously objected to the application contending that no good reason had been given for the delay in filing the appeal.
While it is evident that there was delay by the court in availing the proceedings and judgment between 16th January 2004 when judgment was delivered and 2nd March 2004 when the proceedings were supplied. The applicant took another 4 months before he brought this application.
Although the applicant has alleged that he was unable to raise funds to engage an advocate, the applicant has not revealed what work he does if any and what his means is.Nor has the applicant explained why he did not file the appeal in person. The applicant does not appear to be a person who is totally ignorant as he was able to initiate private proceedings against the Respondent.
I find that the applicant has failed to give any good explanation for his failure to file the appeal within time. Although the court has powers to enlarge time under order XLIX rule 5, such powers can only be exercised in deserving situations and not to aid an indolent litigant. I find no merit in this application and do therefore dismiss it with costs.
Orders accordingly.
H. M. OKWENGU
JUDGE
13/5/05
H. M. Okwengu – Judge
Gikaria – C/C Waweru holding brief for – present
Ng’ang’a for Respondent – present
Court: Ruling delivered in chambers.
H. M. OKWENGU
JUDGE