[2009] KEHC 2804 (KLR)
The court found that the applicant had satisfactorily explained the delay in filing the appeal, as she was only supplied with the necessary proceedings and judgment after a reasonable period, and promptly filed the application thereafter. The court also held that the respondent's grounds of opposition, being...
Source-derived case information.
- Citation
- [2009] KEHC 2804 (KLR)
- Parties
- Applicant: Tabitha Njoki Kagano; Respondent: Jacob Kinyua Kagano
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 47 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- Application allowed. Leave granted to file appeal out of time.
- Judges
- J Karanja
- Legal Topics
- Leave to Appeal Out of Time, Certificate of Delay, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tabitha Njoki Kagano
Applicant
Jacob Kinyua Kagano
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time.
- 2 Whether the delay in filing the appeal was inordinate or justified.
- 3 Whether unsigned grounds of opposition are valid court pleadings.
Ratio Decidendi
The court found that the applicant had satisfactorily explained the delay in filing the appeal, as she was only supplied with the necessary proceedings and judgment after a reasonable period, and promptly filed the application thereafter. The court also held that the respondent's grounds of opposition, being unsigned, were invalid and struck out, leaving the application unopposed. Consequently, the applicant was entitled to the leave sought to file the appeal out of time.
Court Disposition
Application allowed. Leave granted to file appeal out of time.
Orders
- The application dated 10/5/2006 is allowed.
- The applicant is granted leave to file the appeal out of time.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Miscellaneous Application 47 of 2006
TABITHA NJOKI KAGANO……………………………..APPLICANT
VERSUS
JACOB KINYUA KAGANO………………………RESPONDENT
RULING
The application is for leave to file an appeal out of time dated 10/5/2006. The applicant contends that she was supplied with the proceedings late. I note that she has annexed a certificate of delay to her affidavit in support of the said application which shows that she applied for the proceedings and a certified copy of the court’s Judgment on 10/1/2006. The same were supplied on 6/4/2006 and she filed the application on 10/5/2006. I would not therefore say that there was inordinate delay on the part of the applicant in this matter.
I have looked at the grounds of opposition filed against the application by Gitonga D.N & Co Advocates. The same are not signed. It is trite law that all court pleadings must be signed. The said grounds call for striking out and are therefore struck out. This would leave the application un-opposed as whatever Mr. Mugambi for the respondent said in court would have no legs to stand on.
In the circumstances, I allow the application dated 10/5/2006 and grant the applicant leave to file the said appeal. The same must be filed within 14 days of the delivery of this ruling.
W. KARANJA
JUDGE
Delivered, dated and signed or Embu this 29th day of June 2009
In presence of:-Mr Githinji for Mugambi for 2nd Respondent
Applicant present in person.
W. KARANJA
JUDGE