[2007] KEHC 2917 (KLR)
The court found that the applicant failed to annex both the certificate of delay and the draft memorandum of appeal, which are essential documents to support an application for extension of time to appeal. The absence of these documents rendered the application incompetent. Although the applicant stated the source...
Source-derived case information.
- Citation
- [2007] KEHC 2917 (KLR)
- Parties
- Applicant: Simon Kimani Muchiri; Respondent: Lucy Wanjiku Mwangi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 28 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- MM Kasango
- Legal Topics
- Extension of Time, Appeal Procedure, Affidavit Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Kimani Muchiri
Applicant
Lucy Wanjiku Mwangi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient grounds for extension of time to file an appeal.
- 2 Whether failure to annex the certificate of delay and draft memorandum of appeal renders the application incompetent.
Ratio Decidendi
The court found that the applicant failed to annex both the certificate of delay and the draft memorandum of appeal, which are essential documents to support an application for extension of time to appeal. The absence of these documents rendered the application incompetent. Although the applicant stated the source of his information in the affidavit, the substantive failures in documentation were fatal to the application. Consequently, the court dismissed the application with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The Notice of Motion dated 25th February, 2004 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Civil Misc Appli 28 of 2004
SIMON KIMANI MUCHIRI………………………..……….APPLICANT
VERSUS
LUCY WANJIKU MWANGI……………………………RESPONDENT
RULING
The applicant has brought before court a Notice of Motion dated 25th February, 2004. The applicant seeks an order of the court to extend time to the applicant to file the appeal against the judgment of 19th November, 2003 by Kerugoya Magistrate Court. The applicant in his supporting affidavit deponed that he was informed by his advocate that, proceedings were supplied by the Kerugoya Court on 5th February, 2004. The applicant further stated that certificate of delay was supplied to his advocate and the same is dated 23rd February, 2004. It is pertinent to note that the deponent did not annex the certificate of delay to his application. The deponent further stated that the appeal has overwhelming chances of success. It also ought to be noted that the applicant did not annex a memorandum of appeal to his application. The application was opposed by the respondent and opposition counsel for the respondent argued that the affidavit in support was incompetent because it related to matters that the appellant/applicant did not have first hand knowledge. In response to that application I find that the applicant stated the source of his information in his affidavit in support. What however I find defeat the applicant application is that the applicant stated in his affidavit that the certificate of delay was supplied to his advocate that he failed to annex the same to the application. The applicant also failed to annex the draft of memorandum of appeal. Those two failures causes the present application to be incompetent and the same does hereby fail the application. That Notice of Motion dated 25th of February, 2004 is hereby dismissed with costs to the Respondent.
Dated and Delivered at Nyeri this 13th Day of November, 2007.
MARY KASANGO
JUDGE