[2005] KEHC 2895 (KLR)
The court found that the application for leave to file an appeal out of time was res judicata, as the same issue had already been determined in a previous application, and the applicant failed to comply with the conditions set by the court in the earlier ruling. Additionally, the supporting affidavit was struck out...
Source-derived case information.
- Citation
- [2005] KEHC 2895 (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
- Children Miscellaneous Application 19 of 1998
- Procedural Posture
- Miscellaneous Application / Preliminary Objection Ruling
- Outcome
- application dismissed with costs to the respondent
- 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 / Preliminary Objection Ruling
Legal Issues
- 1 Whether the application for leave to file an appeal out of time is res judicata.
- 2 Whether the supporting affidavit is valid in light of the Advocates Act requirements.
Ratio Decidendi
The court found that the application for leave to file an appeal out of time was res judicata, as the same issue had already been determined in a previous application, and the applicant failed to comply with the conditions set by the court in the earlier ruling. Additionally, the supporting affidavit was struck out for failing to identify the person or advocate who drew it, in violation of the Advocates Act. On these grounds, the application was dismissed with costs to the respondent.
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 the Advocates Act.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBIMISCELLANEOUS APPLICATION NO 19 OF 1998REUBEN MBURU GATHIGI ……………………………… PLAINTIFFVERSUSAGRICULTURAL FINANCE CORPORATION ……… DEFENDANTRULING
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