[2013] KEHC 6658 (KLR)
The court found that the applicant was not candid in her application for extension of time. The record showed that her advocate had previously represented to the court that the Notice of Motion had already been filed and undertook to serve it, upon which the court issued directions. However, upon perusal of the...
Source-derived case information.
- Citation
- [2013] KEHC 6658 (KLR)
- Parties
- Applicant: Ruth Nyambeki Abaya; Respondent: Director of Public Prosecutions; Respondent: The Police Commissioner; David Kuria Githinji; Ibrahim Ngamau Wangari; Stephen Kanyi Kabiru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 123 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Enlarge Time for Filing Notice of Motion
- Outcome
- application dismissed with costs
- Judges
- DAS Majanja
- Legal Topics
- Judicial Review, Extension of Time, Leave to File Out of Time, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ruth Nyambeki Abaya
Applicant
Director of Public Prosecutions
Respondent
The Police Commissioner
Respondent
David Kuria Githinji
Ibrahim Ngamau Wangari
Stephen Kanyi Kabiru
Procedural Posture
Miscellaneous Application / Ruling on Application to Enlarge Time for Filing Notice of Motion
Legal Issues
- 1 Whether the court should grant leave to enlarge time for filing the Notice of Motion for judicial review.
- 2 Whether the applicant's explanation for delay is sufficient to warrant the court's discretion.
- 3 Whether the applicant has come to court with clean hands.
Ratio Decidendi
The court found that the applicant was not candid in her application for extension of time. The record showed that her advocate had previously represented to the court that the Notice of Motion had already been filed and undertook to serve it, upon which the court issued directions. However, upon perusal of the record, there was no such motion filed as alleged. The court held that an applicant who is less than candid does not deserve the court's discretion. As such, the application to enlarge time for filing the Notice of Motion was found to be lacking in merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The Notice of Motion dated 3rd July 2013 is dismissed with costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
JUDICIAL REVIEW DIVISION
MISC. APPL. JR. NO. 123 OF 2013
BETWEEN
RUTH NYAMBEKI ABAYA…...............…..........….. APPLICANT
AND
DIRECTOR OF PUBLIC PROSECUTIONS..1ST RESPONDENT
THE POLICE COMMISSIONER…..………..2ND RESPONDENT
AND
DAVID KURIA GITHINJI………..….1ST INTERESTED PARTY
IBRAHIM NGAMAU WANGARI……ND INTERESTED PARTY
STEPHEN KANYI KABIRU………..3RD INTERESTED PARTY
RULING
The ex-parte applicant has moved this court by the Notice of Motion dated 3rd July 2013 in which she seeks to be granted leave for the court to enlarge time within which she is to file the Notice of Motion dated 13th May 2013. The applicant’s advocate stated that leave to commence judicial review proceedings was given on 22nd April 2013 on terms that the Motion be filed within 21 days. That the reason for the failure to file the Motion was that she was unable to raise the filing fee immediately and therefore time lapsed. She fears that if leave is not granted she will lose motor vehicle registration No. [particulars withheld] which she states she is a bona fide purchaser.
The application is opposed by the respondent on the ground that this is the second time leave is being sought and that the applicant has come to court with unclean hands. Counsel for the respondent noted that on 3rd September 2013, the ex-parte applicant advocate attended court and informed the court that the Notice of Motion had been filed and he undertook to serve it within three days. It is upon this position that the court issued orders for the filing of responses and highlighting of submissions today, 18th September 2013.
I have considered the application and submissions and I decline to extend time for filing the motion. The court record is clear that on 3rd September 2013, Mr Macharia, who appeared before the court on the ex-parte applicant, stated that, “We have filed the notice of motion and we intend to serve it within 3 days.” the court then ordered, that the applicant to serve the motion on the respondent and interested parties and gave further directions.
An applicant who is less than candid does not deserve the court’s discretion. In this case the record is clear that there was already a Notice of Motion upon which the court has already acted. I have perused the court record and there is no motion filed as alleged by the ex-parte applicant in the earlier proceedings. Therefore the Notice of Motion dated 3rd July 2013 is lacking in merit and is dismissed with costs.
DATED and DELIVERED at NAIROBI this 18th day of September 2013
D.S. MAJANJA
JUDGE
Mr Nyaberi instructed by Omwoyo, Momanyi , Gichuki and Company Advocates for the ex-parte applicant.
Ms Nyamweya, Litigation Counsel, instructed by the State Law Office for the respondents.