[2018] KEHC 7746 (KLR)
The court found that the applicants failed to provide sufficient cause for the delay in filing the memorandum of appeal. The applicants' conduct, including correspondence indicating an intention to settle and requesting bank details for payment, created a legitimate expectation for the respondent that the matter...
Source-derived case information.
- Citation
- [2018] KEHC 7746 (KLR)
- Parties
- Applicant: Maingi Muindi; Applicant: Jane Njaramba; Respondent: Cosmas Arachi & Paul Gitonga (suing as the administrator of the estate of Nicholas Nkunja)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Case 262 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Extension of Time, Appeal Procedure, Delay in Filing, Quantum of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maingi Muindi
Applicant
Jane Njaramba
Applicant
Cosmas Arachi & Paul Gitonga (suing as the administrator of the estate of Nicholas Nkunja)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicants have provided sufficient cause for the extension of time to file a memorandum of appeal.
- 2 Whether the delay in filing the appeal was inordinate and unjustified.
- 3 Whether the conduct of the applicants post-judgment created a legitimate expectation of settlement for the respondent.
Ratio Decidendi
The court found that the applicants failed to provide sufficient cause for the delay in filing the memorandum of appeal. The applicants' conduct, including correspondence indicating an intention to settle and requesting bank details for payment, created a legitimate expectation for the respondent that the matter would be settled and not appealed. The subsequent filing of the application for extension of time, after such representations, was inconsistent and unjustified. The court held that the interest of justice required finality in litigation and declined to exercise its discretion in favour of the applicants. The application was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for extension of time to file the memorandum of appeal is declined and dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISC CASE NO. 262 OF 2017
MAINGI MUINDI..................................1ST APPLICANT
JANE NJARAMBA...............................2ND APPLICANT
VERSUS
COSMAS ARACHI & PAUL GITONGA
(suing as the administrator of the estate of
NICHOLAS NKUNJA)........................RESPONDENT
RULING
This is an application by the original defendants in the lower court for an order that time be extended for the filing of the Memorandum of Appeal to challenge the decision of the lower court. The judgment of the lower court was delivered on 17th March, 2017. This application was filed on 30th June, 2017. That is after three and half months.
The delay is attributed to various consultations and instructions to file the appeal. From the affidavit in support of the application the applicants only challenge the quantum of damages awarded to the respondents which amounted to Kshs. 1,548,858. 50.
The application is opposed and the delay is said to be inordinate. There were also suggestions from the applicants to settle the matter after the said judgment. Letters to that effect which have been attached to the affidavit have not been disputed. In fact one of the letters dated 31st March, 2017 by counsel for the applicants addressed to the counsel for the respondents asked for bank details so that payment may be made, and also that an application to invest the minor’s share be made.
Seven days thereafter these details were supplied. Surprisingly, instead of compliance the applicants came up with this application. The contents of correspondence, tenor and context mitigate against the applicants’ application.
I am unable to accept their plea after they made the respondent have a legitimate expectation that a settlement was due. The interest of justice demands that this matter comes to an end. Accordingly, the application is declined and dismissed with costs to the respondents.
Orders accordingly.
Dated, signed and delivered at Nairobi this 15th Day of February, 2018.
A. MBOGHOLI MSAGHA
JUDGE