[2014] KEHC 3927 (KLR)

REPUPLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI SUCC. CAUSE NO.754 OF 1996

IN THE MATTER OF THE ESTATE OF PETER KIHIA KARIUKI (DECEASED)

(CONSOLIDATED WITH SUCC.1367 OF 1996 –

IN THE MATTER OF THE LATE HANNAH WAMBUI KARIUKI)

LOICE NYOKABI………………………………….APPLICANT

VERSUS

FELISTERS NJERI KARIUKI....................1STRESPONDENT

PETER KIHIA WANJIRU…………………….2NDRESPONDENT

JOHN KARIUKI WANJIRU………………….3RDRESPONDENT

RULING

The application before court is a Notice of Motion dated 8th June 2012. The application is predicated on the provisions of Order 50 of the Civil Procedure Rules. The Applicant seeks an order from this court to be granted leave to appeal out of time from the judgment of Mbogholi J. This judgment was delivered on 11th June 2003. Loice Nyokabi, the Applicant states that she was dissatisfied with the judgment and had, immediately after the delivery of the judgment, filed a notice of her intention to lodge an appeal to the Court of Appeal. She deponed that she followed up the issue with her then advocate and was assured that the appeal was in progress. In the meantime, she was also busy while involved with other court attendances in this case. It was only on 22nd May 2012 that she learnt from her present advocate that the judgment of Mbogholi J had determined the issue of distribution. She pleaded with the court to grant her leave to file the appeal out of time so that the issues in dispute may be determined of its merit.

When the Respondents were served, they filed statement of grounds of opposition to the application. They stated that the High Court had no jurisdiction to entertain the application. They were of the view that there was an inordinate and unexplained delay of nine (9) years since the judgment and notice of appeal was filed. The Respondents stated that the present application was attempt to frustrate the Respondents from enjoying the fruits of the court’s judgment. They stated that the application was brought in bad faith and was being used as a vehicle by the Applicant to avoid complying with the lawful order of the court. The Respondents further stated that they would suffer great prejudice if the application is allowed. They urged the court to dismiss the application as it lacked merit.

During the hearing of the application, this court heard oral rival submission made by Mr. Mutiso for the Applicant and by Miss Ndirangu for the Respondents. This court has carefully considered the said submission. The issue for determination by this court is whether the Applicant made a case for this court to grant her leave to lodge an appeal out of time. The Applicant seeks to file an appeal from the decision of Mbogholi J. This decision was rendered on 2nd July 2003. It took the Applicant nine (9) years before she filed the present application seeking to be granted leave to file appeal out of time. The Applicant blames her former advocates for the failure to lodge the appeal in time. She states that she was given the impression by her former advocates that the appeal was on track. She only learnt later that that was not the case. She pleads with the court to give her an opportunity to ventilate her appeal. The Respondents are opposed to the application. They ask the court to consider the timing of the application. They stated that the Applicant filed the application to forestall the execution of the said judgment of the court. They were of the view that the Applicant was guilty of laches and inordinate delay. They stated that they would be prejudiced if the application is allowed.

Having evaluated the facts of this application, this court takes the following view of the matter. The Applicant is seeking exercise of discretion by this court to extend time to enable her appeal out of time. This court has jurisdiction under Section 7 of the Appellate Jurisdiction Act to grant leave for a party to appeal out of time where it is satisfied that the Applicant has placed before the court reasonable grounds for failure to lodge the appeal in time. In the present application, the Applicant blames her former advocates for her failure to lodge the appeal on time. She states that she was given the impression by the said advocate that the appeal had been lodged. She only learnt later that such appeal had not infact been lodged. This court was not persuaded by this argument. It is the duty of a litigant to pursue his or her case. It is the duty of the litigant to ensure that any court process has been followed through. It will not do, in such applications, for a litigant to blame his advocate. It was evident that the applicant has been indolent. This court further considers the period of nine (9) years since the judgment was delivered to be such an inordinate period that if this court were to exercise its discretion in favour of the Applicant, it would prejudice the Respondents. It was not lost to this court that the Applicant filed the application when the Respondents sought to execute the judgment. This court is of the view that the application was made with a view to frustrating the Respondents.

In the premises therefore, the application lacks merit and is hereby dismissed with costs to the Respondents.

DATED AT NAIROBI THIS 2ND DAY OF JULY, 2014

L. KIMARU

JUDGE