[2015] KEHC 4680 (KLR)
The court held that although the application for leave to appeal out of time was not accompanied by a supporting affidavit as required, the interests of justice warranted granting the applicant an opportunity to file and serve the necessary affidavit. The absence of a supporting affidavit was not raised as a...
Source-derived case information.
- Citation
- [2015] KEHC 4680 (KLR)
- Parties
- Appellant: Kamau Muhia; Respondent: Agricultural Finance Corporation
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 100 of 2013
- Procedural Posture
- Miscellaneous Application / Preliminary Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Applicant granted leave to file and serve supporting affidavit; further directions reserved.
- Judges
- DW Mbuteti
- Legal Topics
- Leave to Appeal Out of Time, Affidavit Requirement, Service of Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kamau Muhia
Appellant
Agricultural Finance Corporation
Respondent
Procedural Posture
Miscellaneous Application / Preliminary Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the application for leave to appeal out of time is competent in the absence of a supporting affidavit.
- 2 Whether the interests of justice require the applicant to be given an opportunity to file a supporting affidavit.
Ratio Decidendi
The court held that although the application for leave to appeal out of time was not accompanied by a supporting affidavit as required, the interests of justice warranted granting the applicant an opportunity to file and serve the necessary affidavit. The absence of a supporting affidavit was not raised as a competency issue at the hearing, but since the application was based on alleged facts, those facts must be certified by affidavit. The court therefore directed the applicant to file and serve a supporting affidavit within 14 days, with liberty to the respondent to reply, ensuring procedural fairness and adherence to the rules of civil procedure.
Court Disposition
Applicant granted leave to file and serve supporting affidavit; further directions reserved.
Orders
- Applicant to file and serve a supporting affidavit within 14 days.
- Respondent at liberty to file and serve a replying affidavit within 14 days of service.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HGIH COURT OF KENYA AT MURANG’A
MISC CIVIL APPLICATION NO 100 OF 2013
KAMAU MUHIA…………..........................................……………APPELLANT
VERSUS
AGRICULTURAL FINANCECORPORATION………………….....RESPONDENT
P R E L I M I N A R Y R U L I N G
1. The Applicant herein has sought by notice of motion dated 4th November 2013 leave to appeal out of time against a decree of the lower court passed on 18th July 2013. There does not appear to be any supporting affidavit; at any rate the supporting affidavit referred to in the application is not in the court record. The application however contains grounds therefor on its face.
2. The Respondent has opposed the application by grounds of opposition dated and filed on 7th May 2014. There is no replying affidavit; it has been pointed out in the grounds of opposition that no supporting affidavit was served. In the Applicant’s undated reply to grounds of opposition filed on 01/12/2014 the Applicant has assented that the supporting affidavit was served on 15th July 2014; but no evidence of such service was tendered.
3. At the hearing of the application, its competency was not challenged upon the ground of want of a supporting affidavit. All the same, as the application is based upon certain alleged facts, those alleged facts must be certified by affidavit.
4. In the interests of justice therefore, I will direct that the Applicant do file and serve a supporting affidavit within 14 days of today. The Respondent shall be at liberty to file and serve a replying affidavit within 14 days of service of the supporting affidavit. At the delivery of this preliminary ruling I shall give directions as to further hearing of the application. Costs will be in the cause. It is so ordered.
DATED, SIGNED AND PRONOUNCED IN OPEN COURT AT MURANG’A THIS 5TH DAY OF JUNE 2015
H. P. G. WAWERU
JUDGE