THIAYA MWIRIGI JOHN MACHARIA V EMMA WAIRIMU WAITHAKA & EUNICE WANJIKU WAITHAKA [2005] KEHC 477 (KLR)

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