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ELCDismissedMiscellaneous Application (filed as a Miscellaneous Application; related to ELCA No. 4 of 2018)· [2019] KEELC 1655 (KLR)

John Kamakia Nthatu v Festus Kithinji Njagi [2019] KEELC 1655 (KLR)

High Court of Kenya
30 September 2019
PNP.M. Njoroge
812 words in judgment
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The bottom line

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The High Court refused a third attempt to extend time for an appeal, ruling that repeating already-dismissed applications is an abuse of the court's process.

What this practically means

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Executive summary

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The applicant, John Kamakia Nthatu, moved the High Court at Chuka by notice of motion under Section 79G of the Civil Procedure Act, Order 51 of the Civil Procedure Rules and Article 159(2)(d) of the Constitution, seeking leave to file an appeal out of time against the judgment in ELC No. 45 of 2017 delivered on 23rd March 2018, and consequential orders that the file Chuka CMCC No. 192 of 2018 (formerly Marimanti ELC 45 of 2017) be transmitted into the intended appeal, with costs of the application to be costs in the intended appeal. He attributed the delay to confusion when the lower court file was mistakenly allocated a new number, and to the failures of his former advocate, who filed a notice of appeal without a memorandum of appeal in Chuka ELC Appeal 4/2018. The respondent opposed, contending the application was frivolous, vexatious and an abuse of process, that no draft memorandum of appeal was attached, and that the supporting affidavit was unattested. At the inter partes hearing neither the applicant nor his advocate attended; the respondent's advocate, Kijaru, argued that two similar applications had already been dismissed in ELCA No. 4 of 2018. The court confirmed that similar applications were dismissed on 24th July 2018 and 24th July 2019, observed that filing the present application as a Miscellaneous Application appeared designed to conceal those dismissals, and found the application devoid of merit. The application was dismissed with costs to the respondent.

Key legal issues

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Abuse of court process by repeated applications for extension of time

Holding

The application was dismissed as it was a repeat of two previously dismissed applications filed in ELCA No. 4 of 2018

Reasoning

The court perused the ELCA No. 4 of 2018 file and confirmed that two similar applications had been dismissed on 24th July 2018 and 24th July 2019. The court also accepted the respondent's advocate's argument that framing the present application as a Miscellaneous Application appeared designed to obscure the prior dismissals. On that basis the court found the application had no merit, dismissed it and awarded costs to the respondent.

p. 2

Legal principles established

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  • Repeated applications on the same issue that have already been dismissed constitute an abuse of the court process and will be dismissed with costs

Court orders

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  1. 1.The application is dismissed
  2. 2.Costs are awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 51
  • Constitution of KenyaArticle 159(2)(d)
Jurisdiction invoked
Section 79G of the Civil Procedure Act, Order 51 of the Civil Procedure Rules and Article 159(2)(d) of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Kamakia Nthatu v Festus Kithinji Njagi [2019] KEELC 1655 (KLR)", Case Analysis (2019). Miscellaneous Application (filed as a Miscellaneous Application; related to ELCA No. 4 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1655/eng@2019-09-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.