[2007] KEHC 2287 (KLR)
The court found that the applicant had not provided a sufficient or satisfactory explanation for the delay in filing the appeal. The only justification offered was a single paragraph in the supporting affidavit stating that the delay was not inordinate and was excusable, without any substantive reasons. The court...
Source-derived case information.
- Citation
- [2007] KEHC 2287 (KLR)
- Parties
- Applicant: Nelson Nderitu Githua; Respondent: Jane Wangui Gicheru; Respondent: Grace Wambui (Suing as the Legal Representative of the Estate of John Njoroge Njuguna, Deceased)
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 25 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Legal Topics
- Leave to Appeal Out of Time, Judicial Discretion, Delay in Filing, Road Traffic Accident
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nelson Nderitu Githua
Applicant
Jane Wangui Gicheru
Respondent
Grace Wambui (Suing as the Legal Representative of the Estate of John Njoroge Njuguna, Deceased)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the appeal out of time.
- 2 Whether the court should exercise its discretion to grant leave to appeal out of time.
Ratio Decidendi
The court found that the applicant had not provided a sufficient or satisfactory explanation for the delay in filing the appeal. The only justification offered was a single paragraph in the supporting affidavit stating that the delay was not inordinate and was excusable, without any substantive reasons. The court emphasized that its discretion to extend time must be exercised judicially and on sound reasoning. Since the applicant failed to meet this threshold, the application for leave to appeal out of time was dismissed.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 8th March 2007 is dismissed with costs to the Respondent.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT NYERI
Misc Appli 25 of 2007
NELSON NDERITU GITHUA………………….........…......................……APPLICANT
Versus
JANE WANGUI GICHERU
GRACE WAMBUI [Suing as the Legal Representative
of the Estate of JOHN NJOROGE NJUGUNA (DECEASED)]…...................................................................................................RESPONDENTS
RULING
The application by Notice of Motion dated 8th March 2007 is brought on behalf of the proposed Appellant who seeks leave to file an appeal out of time against the judgment of CMCC NO. 617 of 2005. The Applicant in the supporting affidavit deponed that the action in the Chief Magistrate’s court arose out of a road traffic accident whereby the applicant collided with the deceased who is represented by the Respondent. The Chief Magistrate found the Applicant 100% to blame for the accident and the Applicant is of the view that the court did not consider the evidence adduced by him and his witnesses in apportioning blame. Further the Applicant stated that the deceased earnings were miscalculated by the Chief Magistrate. For those two reasons the Applicant stated that he desires to file an appeal. The applicant stated in the affidavit that the delay herein is not inordinate. The application was opposed by the Respondent.
The Respondent took issue with criticism of calculation of loss of earning and stated that the deceased pay slip was produced in court. The Respondent stated that the Applicant had failed to sufficiently explain the delay in filing the appeal, which was a delay of six months. She therefore concluded that the present application is an afterthought. The Respondent also faulted the Applicant for failing to annex the Chief Magistrates Court’s judgment.
I have considered the present application. The same seeks the exercise of this court’s discretion in favour of the Applicant. The Applicant has in my mind very flippantly dealt with the issue of the delay in filing the appeal. Indeed it is only one paragraph of the affidavit in support where the Applicant stated that “the delay in filing this application is not inordinate and the same is excusable”. That is all the Applicant has to offer to this court in seeking the exercise of the court’s discretion. The discretion of the court is to be exercised judicially that is to say, on sound reason rather than whim, caprice or sympathy. Those words are not mine but rather are borrowed from the case of GITHIAKA -V- NDURIRI KLR [2004], 2 KLR 67. If then discretion is to be exercised judicially, the Applicant had a responsibility to inform the court the reason for the delay. The Defendant did not and accordingly the application on that ground alone must and does fail. The Notice of Motion dated 8th March 2007 is therefore dismissed with costs to the Respondent.
Dated and delivered at Nyeri this 6th day of July 2007.
MARY KASANGO
JUDGE