[2007] KEHC 2378 (KLR)
The court found that the applicant failed to provide any documentary or credible evidence to support his claim of illness as the reason for delay. The court noted that the certified copies of the proceedings and judgment were ready within a reasonable time after judgment, and the applicant did not explain when he...
Source-derived case information.
- Citation
- [2007] KEHC 2378 (KLR)
- Parties
- Applicant: Mwaura Waweru; Respondent: Joseph Kinyanjui Waweru
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 24 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- MSA Makhandia
- Legal Topics
- Extension of Time, Appeal Out of Time, Judicial Discretion, Delay in Filing, Evidence of Illness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwaura Waweru
Applicant
Joseph Kinyanjui Waweru
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient cause to warrant extension of time to file an appeal out of time.
- 2 Whether the applicant's illness and late supply of certified copies justified the delay.
Ratio Decidendi
The court found that the applicant failed to provide any documentary or credible evidence to support his claim of illness as the reason for delay. The court noted that the certified copies of the proceedings and judgment were ready within a reasonable time after judgment, and the applicant did not explain when he collected them or why it took him over eighteen months to bring the application. The delay was deemed inordinate and unexplained. Consequently, the applicant did not satisfy the court that there were genuine reasons for failing to file the appeal within time, and thus did not merit the court's discretion to extend time.
Court Disposition
application dismissed
Orders
- The application for leave to appeal out of time is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI Misc Civil 24 of 2007
MWAURA WAWERU ……….……..........…………PLAINTIFF
versus
JOSEPH KINYANJUI WAWERU ……………DEFENDANT
R U L I N G
Before me is an application dated 28th September, 2006 in which the applicant seeks leave to appeal out of time. The application is premised on the grounds that certified copies of the judgment and proceedings which the applicant had applied for to enable him lodge an appeal were supplied to him late and secondly that the applicant is a sickly person a condition which prevented him from filing the appeal in time.
The application was opposed. In his relying affidavit, the respondent averred that the proceedings and judgment were typed and certified well within time. The proceedings and judgment were therefore ready for collection by the applicant in good time. Secondly, the respondent averred that he knew the applicant very well as he was his brother and he was certain that he had not been sick as claimed in his affidavit in support of the application.
I have carefully considered and pondered over the application. I have also taken into account the affidavit in support and in opposition to the application and the annextures thereto. Much as the applicant claims to be sickly, he did not tender any evidence documentary or otherwise to support this claim. If indeed the applicant was sickly and therefore in and out of hospital severally, what could have been easier than for him to annex medical records in verification of the fact. There is no explanation for that failure. That being the case I am inclined to believe the averment by the respondent that the applicant has not at all been sick.
From the record, it is clear that the judgment of the lower court was delivered on 28th January 2005. Immediately after the delivery of the judgment, the applicant applied for certified true copies of the proceedings and judgment. It would appear that the proceedings and judgment were typed and certified on 14th February 2005, well within the period which the applicant ought to have filed his appeal in time. It does appear to me that the applicant is less than candid in his averments. He has not told us when he collected the proceedings and judgment. It is however clear to me that it took the applicant over eighteen months to bring the instant application. That delay is certainly inordinate and has not been explained away. The applicant is therefore underserving of the discretion of this court. The applicant has therefore not satisfied me that there were genuine reasons for his failure to file appeal within time. Accordingly the application is dismissed with costs to the respondent.
Dated and delivered at Nyeri this 9th July 2007.
…………………………….
M.S.A. MAKHANDIA
JUDGE