[2004] KEHC 1367 (KLR)
The High Court struck out the application on two grounds: first, the applicants failed to demonstrate sufficient cause for the inordinate delay of over two years in seeking leave to appeal, having only acted after being served with a Notice to Show Cause. The court found their conduct amounted to indolence and that...
Source-derived case information.
- Citation
- [2004] KEHC 1367 (KLR)
- Parties
- Applicant: Joseph Chepkwony; Applicant: Philomena Tanui; Respondent: Mary Muthoni Gitahi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 477 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application struck out
- Legal Topics
- Extension of Time, Leave to Appeal, Appellate Jurisdiction, Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Chepkwony
Applicant
Philomena Tanui
Applicant
Mary Muthoni Gitahi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the High Court has jurisdiction to grant leave to appeal out of time under Section 7 of the Appellate Jurisdiction Act.
- 2 Whether the applicants have provided sufficient cause for the delay in filing the appeal.
Ratio Decidendi
The High Court struck out the application on two grounds: first, the applicants failed to demonstrate sufficient cause for the inordinate delay of over two years in seeking leave to appeal, having only acted after being served with a Notice to Show Cause. The court found their conduct amounted to indolence and that granting the application would reward such behavior. Second, the court held that it lacked jurisdiction to entertain the application for extension of time to appeal under Section 7 of the Appellate Jurisdiction Act, as such applications must be made to the Court of Appeal. The court relied on established Court of Appeal decisions affirming this procedural requirement....
Court Disposition
application struck out
Orders
- The application is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU MISC. APPLICATION NO. 477 OF 2004
JOSEPH CHEPKWONY………………...…….1ST APPLICANT
PHILOMENA TANUI…………………...……..1ST APPLICANT
VERSUS
MARY MUTHONI GITAHI………..……..…….RESPONDENT
RULING
The Applicants, Joseph Chepkwony and Philomena Tanui, have made an application under certificate of urgency under the provisions of Section 7 of the Appellate Jurisdiction Act seeking the orders of this Court to grant leave to the Applicants to lodge an Appeal in the Court of Appeal out of time against the ruling of the Honourable Justice Alnashir Visram in Nakuru HCC Misc. App. No. 259 of 2001 delivered on the 18th of September 2002. The Application is based on the grounds stated on the face of the Application and supported by the annexed affidavit of the first Applicant, Joseph Chepkwony. I have perused the application together with the annextures thereto. The Application by the Applicants to be granted leave to file appeal out of time from the decision of the Lower Court was disallowed on the 18th of September 2002. That is over two years ago. The Applicants did not deem it appropriate or necessary to lodge an appeal from the said decision within the requisite period.
This is the second time that the Applicants have been caught with their pants down. In the first instance, they alleged that there then Advocate on record did not send the correspondences to them in the correct address. In the second instance they are claiming that their Advocate on record was at fault. It is evident from the above two instances that the Applicants have been indolent. They only seem to move the Court when they realise that the train has already left the station. The Applicants have woken up from their deep slumber when Notice to Show Cause was served upon them. That is when they realised that they ought to have filed an Appeal against the decision of Visram J.
I am not prepared to grant the application by the Applicants. Their attitude is such that to grant them the said order sought would amount to rewarding the Applicants for their indolence. Furthermore, according to my understanding of the procedure for such Applications for extension of time, the said Applications ought to be filed in the Court of Appeal and not before this Court. There are plethora of Court of Appeal decisions which clearly indicate that it is the Court of Appeal which has jurisdiction to entertain such Applications and not the High Court. In the circumstances therefore the Application herein is struck out with no orders as to costs.
DATED at NAKURU this 5th day of October, 2004.
L. KIMARU
AG. JUDGE