[2004] KEHC 104 (KLR)
The court found that the applicant failed to demonstrate good and sufficient cause for not filing the appeal within the prescribed time. The court held that the applicant did not require the lower court proceedings to file the appeal and could have filed the Memorandum of Appeal promptly upon discovering that no...
Source-derived case information.
- Citation
- [2004] KEHC 104 (KLR)
- Parties
- Applicant: Peter Mathenge Ndegwa; Respondent: Phylis Wanjira Mathenge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 640 of 2004
- 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, Extension of Time, Appeals Process, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mathenge Ndegwa
Applicant
Phylis Wanjira Mathenge
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has shown good and sufficient cause for not filing the appeal in time.
- 2 Whether the application for leave to appeal out of time should be made in the lower court or the High Court.
- 3 Whether the absence of the lower court file or failure by the former advocate justifies the delay.
Ratio Decidendi
The court found that the applicant failed to demonstrate good and sufficient cause for not filing the appeal within the prescribed time. The court held that the applicant did not require the lower court proceedings to file the appeal and could have filed the Memorandum of Appeal promptly upon discovering that no appeal had been filed. The alleged absence of the lower court file and the failure of the former advocate did not constitute sufficient justification for the delay. Consequently, the court exercised its discretion to dismiss the application for leave to appeal out of time.
Court Disposition
application dismissed with costs
Orders
- The Chamber Summons application dated 25th May 2004 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 (NAIROBI LAW COURTS)
MISC CIV APPLI 640 OF 2004
PETER MATHENGE NDEGWA ………………......................……………………..APPLICANT
VERSUS
PHYLIS WANJIRA MATHENGE ……………..........................…………………..DEFENDANT
RULING
In the Chamber Summons application dated the 25th May 2004, the Applicant seeks leave of the court to file an appeal out of time against the decision of the learned trial Magistrate in dismissing the Applicant’s application for review of the judgment of the lower court. The application is premised on the seven grounds set out therein and supported by the affidavit of the Applicant made on the 26th May 2004.
In opposing the application on the basis of the Replying Affidavit of the Respondent made on the 31st May 2004, Mr. P.K. Njoroge argued that the application for leave ought, in the first instance, to be made in the lower court by virtue of the provision in order 42 rule 3 of the Civil Procedure Rules.
Mr. M.K. Chebii for the applicant contended that order 42 rule 3 aforesaid does not apply and referred me to section 79G of the Civil Procedure Act and order 49 rule 5 of the Rules aforesaid under which the application is made.
While I would respectfully agree with Mr. Chebii’s submission, it is necessary to point out that the applicant did not require copies of the proceedings to lodge his appeal. All he required was a certified copy of a decree or order sought to be appealed from. Even in that case, order 41 rule 1A of the said Rules provides that the certified copy of the decree or order appealed from may be filed subsequently after the filing of the Memorandum of Appeal.
But even if one were to consider and accept the possibility that the file of the lower court was missing (which is challenged by the Respondent) and that he Applicant’s former Advocate failed to seek leave to appeal out of time, the applicant has not shown how that prevented him from filing the requisite Memorandum of Appeal in this court soon after May this year when he discovered that no appeal had been filed. I am therefore not satisfied that the Applicant is entitled to the discretion sought. He has not shown “good and sufficient cause for not filing the appeal in time” in terms of section 79 G aforesaid.
Accordingly, I hereby dismiss the Chamber Summons application dated the 25th May 2004 with costs and so order.
Dated and delivered at Nairobi this Twelfth day of November 2004.
P. KIHARA KARIUKI
Ag. JUDGE