[2005] KEHC 938 (KLR)
The court found that the applicant was guilty of inordinate delay in both filing the consent and in bringing the application for leave to file the appeal out of time. The applicant failed to provide adequate explanation for these delays. As a result, the court held that there was no justification for exercising its...
Source-derived case information.
- Citation
- [2005] KEHC 938 (KLR)
- Parties
- Applicant: Wambui Ngatia; Respondent: Lydiah Muthoni Waruhiu
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 73 of 3001
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- application dismissed
- Legal Topics
- Extension of Time, Appeal Filing Deadlines, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wambui Ngatia
Applicant
Lydiah Muthoni Waruhiu
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 explanation for the delay in filing the memorandum of appeal outside the consented period.
- 2 Whether the court should exercise its discretion to grant leave to file the appeal out of time.
Ratio Decidendi
The court found that the applicant was guilty of inordinate delay in both filing the consent and in bringing the application for leave to file the appeal out of time. The applicant failed to provide adequate explanation for these delays. As a result, the court held that there was no justification for exercising its discretion in favour of the applicant. The notice of motion dated 8th June 2004 was therefore dismissed, and costs were awarded to the respondent.
Court Disposition
application dismissed
Orders
- The notice of motion dated 8th June 2004 is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
11 paragraphs
IN THE HIGH COURT OF KENYA AT NYERI Misc Appli 73 of 2001
WAMBUI NGATIA ……………………………..……………………… APPLICANT
VERSUS
LYDIAH MUTHONI WARUHIU …………………………………. RESPONDENT R U L I N G
The applicant seeks leave of this court to have his memorandum of appeal filed outside the period consented to by the parties. It is the applicant’s contention that the court file went missing immediately after the consent was filed and that it is only on the 14th April 2004 that the applicant was informed that the court file had been traced thereby rendering this application necessary.
The Respondent objected to the application maintaining that the applicant was guilty of inordinate delay. In an affidavit sworn by the Respondent’s advocate, it was contended that although the consent was entered into on the 9th December 2002, the applicant took 51 days to file the same and this delay was not explained. It was further contended that although the availability of the file was confirmed on 10th March 2004 the applicant did not file this application until 30th June 2004 even though the application was dated 8th June 2004. That delay had also not been explained.
I have considered this application and do concur with the Respondent’s advocate that the applicant has been guilty of inordinate delay which delay has not been adequately explained. In the circumstances there is no justification for this court exercising its discretion in the applicant’s favour. I do therefore dismiss the notice of motion dated 8th June 2004.
Costs to the Respondent. Orders accordingly.
Dated this 24th day of November 2005
H. M. OKWENGU
JUDGE