[2009] KEHC 1799 (KLR)
The court found that the applicant failed to establish that she was a victim of the accident, as her name was not included in the police abstract and the investigating officer was not called to testify. The absence of evidence linking the applicant to the accident undermined her claim and rendered her intended...
Source-derived case information.
- Citation
- [2009] KEHC 1799 (KLR)
- Parties
- Applicant: Mary Nanjala Wachwenge; Defendant: Kenya Commercial Bank Ltd & Another
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 318 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed with costs
- Legal Topics
- Leave to Appeal Out of Time, Personal Injury Claims, Proof of Victim Status
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Nanjala Wachwenge
Applicant
Kenya Commercial Bank Ltd & Another
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time against the judgment of the lower court.
- 2 Whether the applicant has demonstrated sufficient grounds for extension of time, including prospects of success on appeal.
Ratio Decidendi
The court found that the applicant failed to establish that she was a victim of the accident, as her name was not included in the police abstract and the investigating officer was not called to testify. The absence of evidence linking the applicant to the accident undermined her claim and rendered her intended appeal devoid of merit. Consequently, the court held that there was no likelihood of success in the intended appeal and, therefore, no sufficient grounds to grant leave to appeal out of time. The application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The applicant's application for leave to appeal out of time is dismissed with costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT ELDORET
MISCELLANEOUS APPLICATION 318 OF 2009
MARY NANJALA WACHWENGE………………........….APPLICANT
VERSUS
KENYA COMMERCIAL BANK LTD & ANOTHER.....DEFENDANT
R U L I N G
In this application, the applicant has sought leave to appeal out of time against the judgment of the Senior Resident magistrate in SPMC No. 798 of 2000 which was delivered on 6th April, 2009 in which the applicant’s suit was dismissed with costs. The application is based on the ground that the Judgment in the lower Court was delivered without notice and that the applicant’s appeal has high chances of success.
The Suits which gave rise to this Suit briefly may be stated. By a Plaint dated 25th May, 2000, the applicant sued the Respondent claiming general and special damages due to an accident that allegedly occurred on 12th August, 1999 along Bungoma-Kitale Road involving motor vehicle Registration No. KAG 134 X and No. KAH 352 F as a result of head on collision and in which the applicant sustained injuries. The suit was set down for hearing on 27th July,2000. When the matter came up for hearing, the applicant testified and she called witnesses who also testified but the investigating officer was not called to testify nor was the doctor who examined her and treated her. The police abstract which was produced in Court did not include the name of the applicant as one of the victims of the accident.
The trial Magistrate when dismissing the applicant’s claim stated that the applicant had failed to establish that she was one of the victims in the accident motor vehicle as her name was not contained in the police abstract which was prepared by the Investigating Officer who visited the scene immediately after the accident and who was never called to testify.
Since there is no evidence that the applicant was in the accident motor vehicle, there is no likelihood that the applicant’s intended appeal has any chance of success.
Accordingly, the applicant’s application is dismissed with costs.
DELIVERED AND DATED AT ELDORET THIS 22ND DAY OF SEPTEMBER 2009.
J. L. A. OSIEMO,
JUDGE.