[2005] KEHC 905 (KLR)
The court found that the applicant failed to provide any evidence to support his claim that the delay in filing the appeal was due to the late supply of proceedings by the lower court. The applicant did not annex a certificate of delay, a letter requesting proceedings, or any affidavit from the lower court staff to...
Source-derived case information.
- Citation
- [2005] KEHC 905 (KLR)
- Parties
- Applicant: Peter Nazi; Respondent: Martha Mumitsi
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- ? 87 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Delay in Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Nazi
Applicant
Martha Mumitsi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated good and sufficient reasons for failing to lodge the appeal within the prescribed time period.
- 2 Whether the delay in obtaining proceedings from the lower court constitutes a valid ground for extension of time.
Ratio Decidendi
The court found that the applicant failed to provide any evidence to support his claim that the delay in filing the appeal was due to the late supply of proceedings by the lower court. The applicant did not annex a certificate of delay, a letter requesting proceedings, or any affidavit from the lower court staff to substantiate his assertions. As a result, the court was not satisfied that there were good and sufficient reasons for the delay, and therefore dismissed the application for leave to appeal out of time.
Court Disposition
application dismissed with costs to the respondent
Orders
- The summons dated 2nd May 2003 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUGOMA Misc Civ Appli 87 of 2003
PETER NAZI……………………………………………………………APPLICANT VS MARTHA MUMITSI…………………………………..……………RESPONDENT
RULING
In a summons dated 2nd May 2003, Peter Nazi sought for leave to appeal out of time against the judgment of the Learned Senior Resident Magistrate sitting at Bungoma on the 30th day of November 2000. Mr Waswa advocate for the applicant argued that the proceedings were not supplied within time because the lower Court file was taken to the High Court.
On her part, Mrs. Aburili opposed the application on the ground that the reason advanced by the applicant did not merit consideration because the delay was caused by a party to the proceedings with the applicant’s connivance.
The applicant did not cite the provisions relevant to the current prayer. However, I can infer that the applicant must have intended to cite section 79 G of the Civil Procedure Act. Under this section the applicant must satisfy this court that he has good and sufficient reasons why he failed to lodge the appeal within time. In this case the applicant has alleged that he was not supplied with the proceedings within time by the Lower Court. I expected the applicant to annex to his affidavit in support of the application a copy of a certificate of delay from the Lower court, a letter of request of proceedings or a letter showing that the original file had been forwarded to the High court. I even expected him to secure an affidavit from a member of staff of the Lower court to confirm that indeed the Lower court file had been forwarded to this court.
The sum total of the matter is that I am not satisfied that the applicant’s application has merit. There is no evidence that he even applied for proceedings. Consequently, the summons dated 2nd May 2003 is ordered dismissed with costs to the Respondent.
Dated and delivered this 16th day of November 2005.
J. K. SERGON JUDGE
In open Court in the absence of the parties.