[2006] KEHC 433 (KLR)
The court found that the applicant failed to disclose the circumstances and dates justifying the delay in filing the appeal. The applicant's memorandum of appeal was prepared within the requisite period, but his advocates failed to lodge it within the statutory 30 days. The applicant attempted to suppress material...
Source-derived case information.
- Citation
- [2006] KEHC 433 (KLR)
- Parties
- Applicant: Joseph Mayodi Adenya; Respondent: Herman Dennis Lusuli
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 180 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Appeals Out of Time, Judicial Discretion, Delay in Filing, Non Disclosure, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mayodi Adenya
Applicant
Herman Dennis Lusuli
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has shown sufficient cause 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 light of the applicant's conduct.
Ratio Decidendi
The court found that the applicant failed to disclose the circumstances and dates justifying the delay in filing the appeal. The applicant's memorandum of appeal was prepared within the requisite period, but his advocates failed to lodge it within the statutory 30 days. The applicant attempted to suppress material facts and was not candid with the court. The delay of two years was deemed inordinate, and no sufficient cause was shown to warrant the exercise of the court's discretion in the applicant's favour. Consequently, the application for leave to appeal out of time was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application for leave to file an appeal out of time is dismissed.
- The applicant shall pay costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
MISC CIV APPLI 180 OF 2006
JOSEPH MAYODI ADENYA:............................APPLICANT
VERSUS
HERMAN DENNIS LUSULI:........................RESPONDENT
RULING
This an application for leave to file an appeal out of time. It is made under the provisions of Section 79 G of the Civil Procedure Act and Section 3A of the Civil Procedure Act.
The Judgement in Eldoret CM.CC.No.359 of 2003 was delivered on 8th March,2004. It was in favour of the present applicant against the Respondent. The Applicant claims that by the time he learnt of the judgement it was outside the time limited to file any appeal. He said that he was dissatisfied with the award on general damages which he felt was on the lower side. He instructed his advocates, M/S Kitiwa & Company to lodge an appeal against the said judgement.
The Applicant does not disclose when he learnt of the judgement and when he instructed his advocates to file the appeal. What is clear is that the said advocates lodged an appeal out of time. It was subsequently withdrawn.
The respondent opposed the application on the grounds that the application has been brought after an inordinate delay of two years after judgement.
I have considered the application, the replying affidavit and submissions by counsel.
A delay of two years to file the application for leave to file the appeal is certainly an inordinate delay. Was there a good and sufficient cause for not filing the appeal in time to warrant this court exercising its discretion in favour of the Applicant?
First and foremost, the Applicant does not disclose the circumstances and dates to justify the delay. Secondly, the Applicant has deliberated attempted to suppress material facts which are evident from the face of the record. The truth is that the Memorandum of Appeal which he filed was dated 30th March,2004. It was dated well within the requisite period and the Applicant could have filed the same on or before 8th April,2004. His advocates who drew the memorandum of Appeal did not lodge the appeal within the requisite 30 days. They filed the appeal,(civil Appeal No.60 of 2004) outside the requisite period. This was conceded by the Applicant’s counsel during submissions. The same was withdrawn when faced with an application to strike it out.
The Applicant has not been candid. He should have been sincere and sought the indulgence of the Court. He did not and attempted to achieve his desire by non-disclosure and suppression of the true facts.
For the said reasons, the application herein has no merits whatsoever. It is hereby dismissed with costs to the Respondent.
DATED AND DELIVERED AT ELDORET ON THIS 30TH DAY OF NOVEMBER,2006
M.K.IBRAHIM
JUDGE