[2008] KEHC 2770 (KLR)
The court found that the applicant failed to demonstrate sufficient cause for the delay in filing the appeal. The explanation of poverty was not substantiated, especially given that the applicant had legal representation throughout, while the respondent was unrepresented. The court also noted the unexplained delay...
Source-derived case information.
- Citation
- [2008] KEHC 2770 (KLR)
- Parties
- Applicant: Wangondu Mwena & Another; Respondent: Kirugumi Mwema
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 249 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- MM Kasango
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wangondu Mwena & Another
Applicant
Kirugumi Mwema
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause for failure to file the appeal within the prescribed time period.
- 2 Whether poverty constitutes a valid reason for delay in filing an appeal.
- 3 Whether unexplained delay in prosecuting the application warrants dismissal.
Ratio Decidendi
The court found that the applicant failed to demonstrate sufficient cause for the delay in filing the appeal. The explanation of poverty was not substantiated, especially given that the applicant had legal representation throughout, while the respondent was unrepresented. The court also noted the unexplained delay in prosecuting the application itself, as the matter was not fixed for hearing for an extended period without explanation. Consequently, the application lacked merit both on the grounds of insufficient explanation for the delay and the applicant's conduct in failing to prosecute the application diligently. The Notice of Motion was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 13th September 2002 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
MISCELLANEOUS CIVIL APPLICATION NUMBER 249 OF 2002
WANGONDU MWENA & ANR……...…..………………………… APPLICANT
VERSUS
KIRUGUMI MWEMA.…………..………………………………. RESPONDENT
RULING
The Notice of Motion dated 13th September 2002 is brought under order XLIX rule 5 of the Civil Procedure Rules. The only prayer that the applicant proceeded with at the hearing of that application is prayer No. 3 for leave to appeal out of time. In the Supporting Affidavit the applicant deponed that he was not able to raise the required amount to file the appeal until 26th August 2002. After that date the applicant applied for a copy of the order being appealed against. The order was signed on 28th August 2002 which was after the period of filing an appeal. She deponed that the only reason she did not file the appeal in time was due to poverty. In opposition the respondent argued that no good reason had been given why the appeal was not filed in time. The respondent also argued that he is not rich. In further affidavit in reply the respondent stated that it is not true that the applicant is poor because he has all along had an advocate representing him when the respondent was unrepresented.
I have considered the applicant’s application. The application although filed on 26th September 2002 was not argued until 5th February 2008. The matter was last before court on 5th May 2005. On that day the parties agreed to adjourn the matter generally. The basis of adjourning the matter was to allow the parties to file further affidavits. The respondent did file a further affidavit on 9th May 2005. It is not clear to the court why the applicant did not fix the matter for hearing until 6th November 2007. On the merits I find that the applicant has not demonstrated lack of finances to appeal in time. In indeed I accept the argument of the respondent that the applicant having appointed counsel is probably better endowed than the respondent. The applicant’s application is defeated for lack of merit and for the delay in bringing the application for hearing without explanation. Accordingly the Notice of Motion dated 13th September 2002 is hereby dismissed with costs to the respondent.
Dated and delivered at Nyeri this 22nd day of April 2008.
MARY KASANGO
JUDGE