[2005] KEHC 477 (KLR)
The court found that the applicant delayed for 20 days after the ruling before applying for proceedings and did not explain this delay. Further, after receiving the proceedings, the applicant delayed for over a month before preparing and filing the notice of motion and draft grounds of appeal, again without...
Source-derived case information.
- Citation
- [2005] KEHC 477 (KLR)
- Parties
- Applicant: Thiaya Mwirigi alias John Macharia; Respondent: Emma Wairimu Waithaka; Respondent: Eunice Wanjiku Waithaka
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 73 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application dismissed
- Judges
- GG Okwengu
- Legal Topics
- Extension of Time, Appeals Out of Time, Delay in Filing, Vigilance in Litigation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thiaya Mwirigi alias John Macharia
Applicant
Emma Wairimu Waithaka
Respondent
Eunice Wanjiku Waithaka
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient justification for the delay in filing the appeal out of time.
- 2 Whether the applicant has been vigilant in pursuing his right of appeal.
Ratio Decidendi
The court found that the applicant delayed for 20 days after the ruling before applying for proceedings and did not explain this delay. Further, after receiving the proceedings, the applicant delayed for over a month before preparing and filing the notice of motion and draft grounds of appeal, again without explanation. The court held that the applicant failed to demonstrate vigilance or sufficient justification for the delay, and therefore there was no basis to exercise discretion to extend time for filing the appeal.
Court Disposition
application dismissed
Orders
- The notice of motion dated 22nd June 2005 is rejected.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Misc Civ Case 73 Of 2005
THIAYA MWIRIGI alias JOHN MACHARIA ……………………… PLAINTIFF
VERSUS
EMMA WAIRIMU WAITHAKA )
EUNICE WANJIKU WAITHAKA ) ……………………………… DEFENDANT
R U L I N G
The applicant Thiaya Mwirigi alias John Macharia seeks leave of this court to file his intended appeal against the ruling dated 15th March 2005 delivered in Kigumo court on 8th April 2005 filed out of time. It is the applicant’s contention that the certified copies of the proceedings applied for on 28th April 2005 were not supplied until 24th May 2005 after time had already expired. The applicant maintains that the intended appeal has good chances of success.
The Respondent objects to the application.
Having considered the application I find that the applicant took his time from 8th April 2005 when the ruling was delivered until 20 days later on 28th April 2005 when he applied for proceedings. This delay has not been explained.
When the proceedings were supplied to the applicants advocate on 24th May 2005 a Notice of Motion and draft grounds of appeal were not prepared until 22nd June 2005 and not filed in court until 29th June 2005. This further delay of over one month has not been explained. I find therefore no justification for extending time as the applicant has not been vigilant in pursuing his right of appeal.
The notice of motion dated 22nd June 2005 is accordingly rejected.
Dated this 24th day of March 2005.
H. M. OKWENGU
JUDGE