[2006] KEHC 521 (KLR)
The court found that the applicant failed to demonstrate sufficient cause for the delay in filing the appeal, as the explanation provided regarding the late availability of certified copies was not persuasive. Furthermore, the court held that the applicant had not shown that the intended appeal was arguable,...
Source-derived case information.
- Citation
- [2006] KEHC 521 (KLR)
- Parties
- Applicant: Raphael Mugwanja Warari; Respondent: Olkejuado County Council; Respondent: Jacob Mwanto Wangora
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 761 of 205
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed with costs to the respondents
- Judges
- JL Osiemo
- Legal Topics
- Leave to Appeal Out of Time, Costs Award, Withdrawal of Suit, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Raphael Mugwanja Warari
Applicant
Olkejuado County Council
Respondent
Jacob Mwanto Wangora
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against the ruling delivered on 9-9-04.
- 2 Whether the delay in filing the appeal was sufficiently explained and attributable to the court.
- 3 Whether the applicant has demonstrated an arguable appeal regarding the award of costs upon withdrawal of suit.
Ratio Decidendi
The court found that the applicant failed to demonstrate sufficient cause for the delay in filing the appeal, as the explanation provided regarding the late availability of certified copies was not persuasive. Furthermore, the court held that the applicant had not shown that the intended appeal was arguable, particularly since costs typically follow the event and the applicant, having withdrawn the suit, was properly ordered to pay costs to the respondents. The court concluded that there was no merit in the application for leave to appeal out of time, and that the intended appeal had no chances of success.
Court Disposition
application dismissed with costs to the respondents
Orders
- The Notice of Motion dated 22nd April 2005 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
Misc Appli 761 of 205
RAPHAEL MUGWANJA WARARI………............…… APPLICANT
VERSUS
OLKEJUADO COUNTY COUNCIL ….……… 1ST RESPONDENT
JACOB MWANTO WANGORA ……………... 2ND RESPONDENT
RULING
The Applicant by way of this Notice of Motion dated 22nd April, 2005 and expressed to be brought under Order XLIX Rule 5(1) of the Civil Procedure Rules and Section 79 G and 95 of the Civil Procedure Act seeks leave to file appeal out of time from the ruling delivered on 9-9-04 in RMCC No.6464 of 1995. The applicant filed the suit in the RM’s Court seeking to restrain the Respondent from trespassing upon his premises in 1995. On 26-1-04, he applied for leave to withdraw the suit which application was granted with costs to the Defendants. The Respondents extracted the order and drew a decree.
On 25-6-04 the Applicant brought the instant application by way of Notice of Motion under Order XLIX Rule 5 of the Civil Procedure Rules and Sections 79G and 95 of the Civil Procedure Act for stay of execution and amendment of the decree to exclude the costs. That application was dismissed with costs on 9-9-04 hence this application. The Applicants application is premised on the ground that he had applied for certified copies of proceedings and ruling on 13-9-04 but the same were not availed to him until 19-1-05 and he blamed the delay on the court.
Mr. Chege Counsel for the Applicant submitted that the Applicant has arguable appeal and he annexed draft Memo of Appeal. The application is opposed by the Respondent Mr. Kinyanjui. Counsel for the Respondent submitted that the Applicant’s application is misconceived and mischievous in that no leave to appeal was sought and granted by the trial Magistrate and that there was undue delay in bringing this application. Lastly he submitted that the Applicant has not demonstrated that he has arguable appeal. The main issue here is the costs awarded to the Defendants after the Plaintiff had applied to withdraw this suit and the application was granted with costs to the Defendants.
The Plaintiff had filed this suit against the Defendants in 1995. The Defendants were served with summons and filed defences. The suit has been in Court for the last 9 years. Usually costs follow the event.
The Applicant applied and was granted leave to withdraw this suit but was ordered to pay costs to the Respondents. I do not see how in such circumstances the Applicant would have slapped costs and it follows therefore that the intended Appeal has no chances of success. The Applicants Notice of Motion dated 22nd April 2005 is dismissed with costs to the Respondents.
DATED at Nairobi this 9th day of February 2006.
…………………………….
J.L.A. OSIEMO
JUDGE