[2005] KEHC 155 (KLR)
The court found that the application for leave to file an appeal out of time was res judicata, as a similar application had already been heard and determined, with the applicant failing to comply with the conditions set by the court. The court further held that the supporting affidavit was defective for failing to...
Source-derived case information.
- Citation
- [2005] KEHC 155 (KLR)
- Parties
- Applicant: Reuben Mburu Gathigi; Respondent: Agricultural Finance Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 19 of 1998
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection to Application for Leave to Appeal Out of Time
- Outcome
- application dismissed with costs to the respondent
- Judges
- ARM Visram
- Legal Topics
- Res Judicata, Leave to Appeal Out of Time, Affidavit Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Reuben Mburu Gathigi
Applicant
Agricultural Finance Corporation
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection to Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the application for leave to file an appeal out of time is res judicata.
- 2 Whether the supporting affidavit violates Sections 34 and 35 of the Advocates Act and should be struck out.
Ratio Decidendi
The court found that the application for leave to file an appeal out of time was res judicata, as a similar application had already been heard and determined, with the applicant failing to comply with the conditions set by the court. The court further held that the supporting affidavit was defective for failing to identify the person or advocate who drew it, thus violating Sections 34 and 35 of the Advocates Act. On these grounds, the application was dismissed with costs to the respondent, and the affidavit was struck out.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 31st May, 2004 is dismissed with costs to the respondent.
- The supporting affidavit is struck out for non-compliance with Sections 34 and 35 of the Advocates Act.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISCELLANEOUS CIVIL APPLICATION 19 OF 1998
REUBEN MBURU GATHIGI...........................................PLAINTIFF
VERSUS
AGRICULTURAL FINANCE CORPORATION...............DEFENDANT
RULING
Counsel for the Respondent, Mrs Mbabu, raised a preliminary objection to the application dated 31st May, 2004 for leave to file an appeal out of time, on the grounds that it was res judicata, having been heard and determined on 24th September, 2001.
The applicant admits in the grounds on the face of the application that a similar application was indeed made and determined by the Court on 24th September, 2001 when the Court allowed the application on condition that the appeal was filed within 7 days of the Court’s order. That was, of course, not done and the order lapsed. The present application, made some three years after the previous one, is exactly the same. I agree with Mrs Mbabu that the same is res judicata, and on that ground alone it is dismissed with costs to the Respondent.
Mrs Mbabu also argued that the affidavit in support of the application does not identify the person or advocate who drew the same, and accordingly it violated Sections 34 and 35 of the Advocates Act, and ought to be struck out. I agree with that argument based on the reasoning outlined in the case of Johann Distelberger vs Joshua Muindi (HCCC No 1587 of 2003 – Nairobi) and hereby strike the same out.
Accordingly, the application dated 31st May, 2004 is dismissed with costs to the Respondent.
Dated and delivered at Nairobi this 10th day of February, 2005.
ALNASHIR VISRAM
JUDGE