[2006] KEHC 3113 (KLR)
The court found that the applicant sought to file an appeal, not to review the subordinate court's order. The legal mechanism for review is distinct and must be pursued in the subordinate court, not the High Court. Since the application was premised on provisions relating to review rather than appeal, it was...
Source-derived case information.
- Citation
- [2006] KEHC 3113 (KLR)
- Parties
- Applicant: Mary Njoki Njenga; Respondent: Peter Muiruri
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 239 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Enlarge Time to File Appeal
- Outcome
- application struck out as incompetent with costs to the respondent
- Judges
- JW Gacheche
- Legal Topics
- Extension of Time, Children Act Procedure, Appeals From Children Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Njoki Njenga
Applicant
Peter Muiruri
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Enlarge Time to File Appeal
Legal Issues
- 1 Whether the applicant is entitled to an order enlarging time to file an appeal against the decision of the Resident Magistrate under the Children Act.
- 2 Whether the application is competent given the relief sought is for appeal and not review.
Ratio Decidendi
The court found that the applicant sought to file an appeal, not to review the subordinate court's order. The legal mechanism for review is distinct and must be pursued in the subordinate court, not the High Court. Since the application was premised on provisions relating to review rather than appeal, it was incompetent. The court therefore struck out the application with costs, but clarified that the applicant is at liberty to file a fresh, properly constituted application.
Court Disposition
application struck out as incompetent with costs to the respondent
Orders
- The application is struck out with costs to the respondent.
- The applicant is at liberty to file another application.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Misc. Civ Appli. 239 of 2005
MARY NJOKI NJENGA …………………………………....…………………… APPLICANT
VERSUS
PETER MUIRURI ……………………………………………………………… RESPONDENT
R U L I N G
Mary Njoki Njenga, who feels aggrieved by the decision of the Resident Magistrate Eldoret, delivered on 2/9/2005, has preferred this application in which she seeks an order to enlarge the time within which she should file her appeal.
Her grounds are that the delay which occurred as she sought legal representation is explainable; that the application was made at the earliest instance and finally that the respondent shall not be prejudiced by the order which she seeks.
The application is opposed on several grounds, but mainly that it is incompetent, devoid of merit and also that the intended appeal has no chances of success.
This appeal arises from a cause, which originally fell under the Children’s Act 2001, which Act also grants the Children’s Court the jurisdiction to deal with matters of review, variation, suspension or discharge of any orders, or to revive the same after their suspension or discharge (section 117). The Act also provides at its section 80, that appeals from the said Children’s Courts shall lie, at the first instance to this Court and at the second instance, to the Court of Appeal.
Order XLIV rule 5 of the Civil Procedure Rules, which she relies on stipulates that:
“(1) Where the application for a review is heard by more than one Judge and the Court is equally divided the application shall be dismissed.
(2)Where there is a majority, the decision shall be according to the opinion of the majority.”
It is however clear from the pleadings on record that what this applicant wishes is to file an appeal and not to seek an order of review, which latter order can only be obtained from the subordinate Court. Based on that account alone, I find that this application is incompetent and can not lie. I do therefore strike it out with costs.
She is at liberty to file another application.
Dated and delivered at Eldoret this 23rd day of March 2006.
JEANNE GACHECHE
JUDGE
Delivered in the presence of:
Mr. Obiero holding brief for Mrs. Nyaundi for the applicant
Mr. Nyachiro holding brief for Mr. Mbugua for the respondent