[2014] KEHC 3601 (KLR)
The court found that the applicant failed to provide cogent reasons for not filing the appeal within the prescribed period. The explanation that the applicant pursued a review in the subordinate court instead of an appeal was not sufficient justification for the delay. Furthermore, the applicant did not annex a...
Source-derived case information.
- Citation
- [2014] KEHC 3601 (KLR)
- Parties
- Applicant: Peter Kariuki Njoroge; Respondent: Hannah Nduta Njuguna
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 90 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application dismissed
- Judges
- LK Kimaru
- Legal Topics
- Extension of Time, Leave to Appeal Out of Time, Exercise of Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peter Kariuki Njoroge
Applicant
Hannah Nduta Njuguna
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reasons for failure to file an appeal within the prescribed 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 failed to provide cogent reasons for not filing the appeal within the prescribed period. The explanation that the applicant pursued a review in the subordinate court instead of an appeal was not sufficient justification for the delay. Furthermore, the applicant did not annex a draft memorandum of appeal, making it impossible for the court to assess whether there were arguable grounds for appeal. The court concluded that there was no basis to exercise its discretion in favour of the applicant, and the matter should be brought to an end.
Court Disposition
application dismissed
Orders
- The application for extension of time to appeal is dismissed with costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. APP. NO.90 OF 2014
PETER KARIUKI NJOROGE……..….……………………………………………………….APPLICANT
VERSUS
HANNAH NDUTA NJUGUNA……..……………………………………………………RESPONDENT
R U L I N G
The Applicant, Peter Kariuki Njoroge was aggrieved by the judgment of the subordinate court delivered on 3rd June 2013 in Kiambu Chief Magistrate’s Court Succession Cause No.196 of 2010, In the Matterof theEstate of Mithanga KuriaaliasMuthanga KuriaaliasNjoroge Kuria. The Applicant did not file appeal within the requisite period. He now seeks leave of the court to appeal against the said decision of the court out of time. The Applicant explained that he failed to file the appeal on time because he erroneously filed an application for review in the same subordinate court instead of filing an appeal before this court. By the time he discovered his error, the thirty (30) days period by which he was required to file the appeal had already expired. He therefore craved for this court to exercise its discretion in his favour and grant him leave to appeal out of time.
The application is opposed. The Respondent filed a replying affidavit in opposition to the application. In her view, there was no ground upon which the court could exercise its discretion to grant the applicant leave to lodge an appeal out of time. She deponed that the decision rendered by the trial court was sound as it was based on the evidence adduced. The Applicant had not presented to the court any evidence to challenge the finding made by the trial court. She urged the court to dismiss the application with costs.
At the hearing of the application, this court heard oral rival submission made by the Applicant and the Respondent. They essentially reiterated the contents of the application and the replying affidavit. The issue for determination by this court is whether the Applicant made a case for this court to grant him leave to appeal out of time. In determining whether or not to grant such application, this court is required to consider the reasons given by the Applicant for his failure to appeal in time, the time it took before the application for extension of time was filed, and finally, an indication on whether the Applicant has arguable grounds of appeal. In the present application, the Applicant was required to have lodged the appeal by 3rd July 2013. He filed the present application seeking leave to appeal out of time on 9th May 2014. The Applicant explained that he had failed to file the appeal in time because he had applied his energy towards prosecuting an application for review before the same subordinate court. That application for review was dismissed. It was then that the Applicant moved this court seeking to be granted leave to appeal out of time. The Applicant did not annex a draft memorandum of appeal to his application. This court is therefore unable to assess whether the Applicant has an arguable appeal that is capable of being considered by this court.
On evaluation of the reasons advanced by the Applicant, it was clear to this court that it cannot exercise its discretion in favour of the Applicant because the Applicant gave no cogent reasons for his failure to appeal in time. Having perused the judgment of the subordinate court, this court is of the view that the issues in dispute were determined. The matter ought to be brought to an end.
In the premises therefore, the application for extension of time filed on 9th May 2014 lacks merit and hereby dismissed with costs. It is so ordered.
DATED AT NAIROBI THIS 25TH DAY OF JULY, 2014.
L. KIMARU
JUDGE