Patrick Watete, Wilson Maina and Beatrice Njeri Mwangi, the officials of Ndiangiri Self Help group have come to this court praying that there be a stay of execution on the judgment delivered on 13th June 2024. Moreover, that the applicants be allowed to file their appeal out of time. The application is based on grounds that the effort to get a copy of the judgment were frustrated by the curt which availed a copy of the judgment on the 17th July 2024 at 17.07 p.m. The advocates assistant effort to get a copy of the ruling were frustrated by the court registry which stated the file was not available in the registry.
The applicants filed a supporting affidavit sworn by Nancy Njoroge advocate whose import is that efforts to trace the file at Nakuru Registry in order to access the judgment has failed as the registry staff stated that they only have a skeleton file having forwarded the original file to Naivasha where honorable Y. I Khatambi had been transferred to. She called the magistrate in respect of the file, but the Magistrate stated that the file had been forwarded to Nakuru. She was to get in touch with one Lokwang to get the file. Lokwang referred her to Juma and the same became circuitous. The reasons given for failure to file the appeal in time was that they never received the judgment in time.
In the replying affidavit, Daniel Ndeke Gatumu states that he is one of the directors of the 1st respondent. That the applicants have not exhibited any evidence that they are a legal entity capable to file the application. According to the respondent, the judgment was delivered in the presence of parties and their advocates. The applicants advocate was present during the judgment. The judgment reminded the parties that they had 30 days from the date of judgment to appeal.
According to the respondent there is no evidence for the reasons for the delay. The respondent states that there is no substantive basis for injunction.
In her oral submissions Nancy Njoroge learned counsel submitted that the applicant did not appeal in time due to financial constraints. Mr Kisila, learned counsel submitted that there is no justification for the grant of orders sought. The reason given are not sufficient.
I have considered the application, reply and rival submissions and do find that the applicants counsel was present when the judgment was delivered. No good reason has been given for the delay in filing the memorandum of appeal. Financial constrains cannot be a reason for failure to file a Memorandum of Appeal. Even if it was, there is no evidence that the applicant was constrained financially. He did not come to court as a pauper.
The Applicants has not filed any documents such as letter communicating with the Magistrate or Court Administrator on the position of the file. The application lacks merit and is dismissed with costs.
Ruling dated and delivered electronically this 9th day of October 2024.
The applicants filed a supporting affidavit sworn by Nancy Njoroge advocate whose import is that efforts to trace the file at Nakuru Registry in order to access the judgment has failed as the registry staff stated that they only have a skeleton file having forwarded the original file to Naivasha where honorable Y. I Khatambi had been transferred to. She called the magistrate in respect of the file, but the Magistrate stated that the file had been forwarded to Nakuru. She was to get in touch with one Lokwang to get the file. Lokwang referred her to Juma and the same became circuitous. The reasons given for failure to file the appeal in time was that they never received the judgment in time.
In the replying affidavit, Daniel Ndeke Gatumu states that he is one of the directors of the 1st respondent. That the applicants have not exhibited any evidence that they are a legal entity capable to file the application. According to the respondent, the judgment was delivered in the presence of parties and their advocates. The applicants advocate was present during the judgment. The judgment reminded the parties that they had 30 days from the date of judgment to appeal.
According to the respondent there is no evidence for the reasons for the delay. The respondent states that there is no substantive basis for injunction.
In her oral submissions Nancy Njoroge learned counsel submitted that the applicant did not appeal in time due to financial constraints. Mr Kisila, learned counsel submitted that there is no justification for the grant of orders sought. The reason given are not sufficient.
I have considered the application, reply and rival submissions and do find that the applicants counsel was present when the judgment was delivered. No good reason has been given for the delay in filing the memorandum of appeal. Financial constrains cannot be a reason for failure to file a Memorandum of Appeal. Even if it was, there is no evidence that the applicant was constrained financially. He did not come to court as a pauper.
The Applicants has not filed any documents such as letter communicating with the Magistrate or Court Administrator on the position of the file. The application lacks merit and is dismissed with costs.
Ruling dated and delivered electronically this 9th day of October 2024.