Amir A. Boy V Land Adjudication Director & District Land Registrar  EKLR
|Civil Application 168 of 1995||28 Jul 1995|
John Mwangi Gachuhi
Court of Appeal at Mombasa
Amir A. Boy v Land Adjudication Director & District Land Registrar
Amir A. Boy v Land Adjudication Director & District Land Registrar  eKLR
Amir A. Boy v Land Adjudication Director & another
Court of Appeal, at Mombasa July 28, 1995
Civil Application No NAI 168 of 1995
(Application for extension of time to lodge memorandum and record of appeal out of time in an intended appeal from a ruling/order of the High Court of Kenya at Mombasa (Justice ICC Wambilyangah) dated 23rd November, 1992 in HC Misc C No 131 of 1991)
Court of Appeal - application for extension of time to file record of appeal - whether applicant is under obligation to give details of the case in support of the application.
Court of Appeal - application for extension of time to file record of appeal - applicant seeking extension of time to file record of appeal after the land subject matter of the appeal has been registered in the names of third parties-whether application if granted will not cause injustice
The applicant brought the instant application under rule 4 of the Court of Appeal Rules seeking extension of time within which to file a record of appeal.
The applicant had filed a record of appeal against the ruling of the superior court but when the same came up for hearing on 20th January, 1995, it was struck out as being incompetent for having failed to include a certified copy of the order appealed against as provided by rule 85(1)(h).
Counsel for persons directly affected by the application however opposed the application on the grounds although the Court has discretion under rule 4, such discretion should not aid a litigant who fails to lodge proper papers and seek orders for review or to cause injustice to the successful party. The applicant however maintained in his affidavit in support of the application that the omission to file certified copy of the order was bona fide and was occasioned by the misinterpretation of rule 85 by his advocate.
1. In an application for extension of time, it is unnecessary to state in detail the facts of the case, but in the present application, it is necessary to do so since counsel for the directly affected persons and Senior Principal State Counsel submitted that even if extension is granted, it will be a waste of time and money as the appeal has no prospect of success.
2. Where indulgence is sought, even if the delay be excusable the applicant still has to show that no injustice would be caused to the successful litigant.
3. The respondents and the directly affected persons have undergone traumatic process and expense in getting the ex-parte order set aside and rectification of the register. The applicant has been requested to return the titles issued to him for cancellation but has refused which refusal has caused the Kwale District Land Registrar to publish Gazette Notice No 5386 on 2nd September, 1994 to the effect that the directly affected persons named in the notice will be re-registered as owners of their respective plots. To allow the application will be an exercise in futility as the intended appeal has already been overtaken by events and it has no prospect of success.
1. Brink’s-Mat Ltd v Elcombe  3 All ER 188;  1 WLR 1350
2. Owners of the Motor Vessel “Lilian S’” v Caltex Oil (K) Ltd  KLR 1
3. R v Kensington Income Tax Commissioners Ex parte Princess. Edmond De Polignac (1917) 1 KB 486
4. Pollok House Ltd v Nairobi Wholesalers Ltd (No 2) (1972) EA 172
1. Court of Appeal Rules (cap 9 Sub Leg) rules 4, 85, 85(1) (h)
2. Civil Procedure Rules (cap 21 Sub Leg) order VI rule 13
Mr Gacivi for the 1st and 2nd Respondent