[2013] KEHC 6699 (KLR)
The court found that the applicant failed to provide sufficient grounds or evidence to justify the delay in seeking leave to file the appeal out of time. The alleged prior filing and subsequent withdrawal of an appeal was unsupported by documentary evidence, and the explanation regarding the lost memorandum of...
Source-derived case information.
- Citation
- [2013] KEHC 6699 (KLR)
- Parties
- Appellant: Rose Kibui Gatanyu; Respondent: Kelly Karanja Muritu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Cause 45 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- application dismissed
- Judges
- DN Musyoka
- Legal Topics
- Extension of Time, Appeals From Children Court, Discretion of Court, Delay in Filing, Children Act Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Kibui Gatanyu
Appellant
Kelly Karanja Muritu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient grounds for extension of time to file an appeal out of time against the decision of the Children's Court.
- 2 Whether the delay in filing the application for leave to appeal out of time is inordinate and unexplained.
Ratio Decidendi
The court found that the applicant failed to provide sufficient grounds or evidence to justify the delay in seeking leave to file the appeal out of time. The alleged prior filing and subsequent withdrawal of an appeal was unsupported by documentary evidence, and the explanation regarding the lost memorandum of appeal was vague and unsubstantiated. The delay of five months from the date of the order to the filing of the application was deemed inordinate and unexplained. Consequently, the court was not satisfied that the applicant was entitled to the exercise of its discretion in her favour and declined to extend time for filing the appeal.
Court Disposition
application dismissed
Orders
- The Motion dated 27th May 2013 is dismissed.
- There will be no order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
Misc Cause No. 45 Of 2013
ROSE KIBUI GATANYU...................APPELLANT
VERSUS
KELLY KARANJA MURITU..........RESPONDENT
RULING
The Motion dated 27th May 2013 and filed in court on 28th May 2013 seeks leave to file appeal out of time. The decision sought to be appealed from was made on 27th November 2012 in Nairobi Children's Court Children Case No. 524 of 2009 by the Hon. C.A. Ocharo, Principal Magistrate.
Under Section 80 of the Children Act, Cap 141 Laws of Kenya, an appeal lies from a decision of the Children's Court in any civil proceedings to the High Court. From the papers filed in the matter the proceedings in question were civil in nature. The appeals from civil proceedings in the Children's Court are governed by the Civil Procedure Act which, according to the preamble to the said Act, makes provisions for procedure in civil courts.
The order complained of is appeallable from by virtue of Section 80 of the Children Act as read together with Section 75(1)(h) of the Civil Procedure Act. By virtue of Section 79G of the Civil Procedure Act, every appeal from a subordinate court to the High Court shall be filed within thirty (30) from the date of the decree or order appealed from, excluding such time as may be certified by the court as having been requisite from the preparation and delivery to the appellant of a copy of the order. There is a proviso toSection 79G to the effect that an appeal may be admitted out of time if the court is satisfied that there are ground and sufficient case for the delay.
The order complained of was made by the court on 27th November 2013. The appeal against the order ought to have been filed 30 days thereafter. That would take us to the first week of December 2012. It was not filed by then, and it was not until 28th May 2013 that the applicant came to court to obtain leave to file the same out of time.
The applicant alleges that an appeal had been filed on time by his previous lawyers, but then it was withdrawn on 3rd April 2013. She has not attached a copy of the Memorandum filed then and alleges that the same is lost. It is alleged to have been filed in HCCA No. 30 of 2012. It is not indicated when the said alleged appeal had been filed.
In reply to the application, the respondent filed grounds of opposition. He in principle states that there has been inordinate delay in the bringing of the application.
Both sides have filed with submissions to support the averments in made in their papers filed in court. I agree with the respondent. There has been inordinate delay in the filing of the application. The order complained of was made on 27th November 2012, 30 days elapsed sometime in the last week of December 2012. The application before me was filed in court on 28th May 2013, five months down the line. It is alleged that there was an appeal filed, but withdrawn. No proof has been provided. It is alleged that the Memorandum of Appeal got lost. It is not stated which copy lost, twhether it was what was in the possession of advocates or that in the court file.
I am not satisfied that the applicant is entitled to exercise of discretion in her favour. I decline to extend time for the filing of the appeal. The Motion is dismissed. There will be no order to costs.
SIGNED DATEDandDELIVEREDin open court this 11thday of October, 2013.
W.M. MUSYOKA
JUDGE