Case Metadata |
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| Case Number: | Application 1 of 2014 |
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| Parties: | Charles Karathe Kiarie, Thomas Wanyoike Wainaina & Kalang Enterprises v Administrators of the Estate of John Wallace Mathare (Deceased), Administrators of the Estate of Dennis Waweru Rimui (Deceased) & Administrators of the Estate of Joyse Wanja Gitau (Deceased) |
| Date Delivered: | 17 Dec 2019 |
| Case Class: | Civil |
| Court: | Supreme Court of Kenya |
| Case Action: | Ruling |
| Judge(s): | Smokin Charles Wanjala |
| Citation: | Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 2 others [2019] eKLR |
| Case History: | (Being an application for extension of time to file and serve a reference out of time against the Taxation Ruling and Orders of the Supreme Court (D. Ole Keiuwa, Hon Deputy Registrar) delivered on 13th April, 2018). |
| Court Division: | Civil |
| County: | Nairobi |
| Case Summary: | Supreme Court declines to grant an extension of time where the delay was not explained to its satisfaction. Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 2 others [2019] eKLR Application 1 of 2014 Supreme Court of Kenya SC Wanjala, SCJ December 17, 2019 Reported by Mathenge Mukundi Civil Practice and Procedure - applications - application for extension of time to file and serve a reference out of time against the taxation ruling and orders of the Supreme Court – limitation period for filing the application – where it was alleged that the delay was occasioned by the Supreme Court Registry failure to furnish the applicants with a copy of the taxation ruling and typed proceedings – whether the applicants explained the delay in filing and serving a reference against the taxation ruling and orders of the Supreme Court to its satisfaction - Supreme Court Rules, 2012, rules 21, 49 and 53. Brief facts The applicants sought an extension of time to file a reference against the taxation ruling and orders of the Supreme Court, submitting that the delay was occasioned by the Supreme Court registry’s delay in furnishing them with a copy of the typed proceedings. The respondents contended that a copy of the ruling and typed proceedings were not required to file a reference on taxation under rule 49 (1) of the Supreme Court Rules. Even after being furnished with a copy of the ruling and typed proceedings, the applicants had not explained the 30-day delay in filing the taxation reference and that the application was an afterthought brought with an aim to delay the cause hence an abuse of court process. Issue Whether the applicants explained the delay in filing and serving a reference against the taxation ruling and orders of the Supreme Court to its satisfaction. Held A copy of the ruling and typed proceedings were availed to the applicants on May 17, 2018, and yet, it was not until June 12, 2018, that they filed the application for extension of time. The applicants contended that the 27-day delay was the time it took them, to prepare the application for extension of time. Such an explanation was neither reasonable nor credible. Application dismissed with costs to the respondents.
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| Extract: | Cases: None referred to Statutes East Africa 1.Supreme Court Rules, 2012 (Act No 7 of 2011 Sub Leg) rules 21, 23,49,(1); 53 – (Interpreted) 2.Supreme Court Act, 2011 (Act No 7 of 2011) section 23(2)(b) - (Interpreted) Advocates: None Mentioned |
| Case Outcome: | Application dismissed |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA AT NAIROBI
(Coram: Wanjala, SCJ)
APPLICATION NO. 1 OF 2014
BETWEEN
CHARLES KARATHE KIARIE......................................1ST APPLICANT
AND
THOMAS WANYOIKE WAINAINA.............................2ND APPLICANT
KALANG ENTERPRISES..............................................3RD APPLICANT
AND
THE ADMINISTRATORS OF THE ESTATE OF
JOHN WALLACE MATHARE (DECEASED)..........1ST RESPONDENT
THE ADMINISTRATORS OF THE ESTATE OF
DENNIS WAWERU RIMUI (DECEASED).............. 2ND RESPONDENT
THE ADMINISTRATORS OF THE ESTATE OF
JOYSE WANJA GITAU (DECEASED).....................3RD RESPONDENT
(Being an application for extension of time to file and serve a reference out of time against the Taxation Ruling and Orders of the Supreme Court (D. Ole Keiuwa, Hon Deputy Registrar) delivered on 13th April, 2018).
RULING OF THE COURT
[1] UPON perusing the Notice of Motion Application by the Applicants dated 12th June 2018, brought under Rules 21, 49 and 53 of the Supreme Court Rules, 2012 and Article 163 of the Constitution, seeking an extension of time to file a Reference against the Taxation Ruling and Orders of the Supreme Court Deputy Registrar dated 13th April, 2018 in Supreme Court, Civil Application No. 1 of 2014; and
[2] UPON reading the Applicants’ Supporting Affidavit sworn on 12th June 2018; and
[3] UPON considering the Applicants’ written submissions dated 12th June 2018, and filed on 8th August 2018, wherein the Applicants submit that, the delay in filing the Reference under Rule 49 of the Supreme Court Rules 2012, was occasioned by the Supreme Court Registry’s delay in furnishing them with a copy of the typed proceedings; that the typed proceedings were only availed to the Applicants on 17th May 2018; and
[4] UPON reading the 1st and 2nd Respondents’ Replying Affidavit sworn on 10th July 2018, and filed on 11th July 2019, in which the Respondents oppose the Application, arguing that a copy of the Ruling and typed proceedings are not required to file a Reference on Taxation under Rule 49(1) of the Supreme Court Rules; that even after being furnished with a copy of the Ruling and typed proceedings, the Applicants have not explained the 30 day delay in filing the Taxation Reference; that the Application is brought with an aim to delay this cause, hence an abuse of court process; and
[5] UPON considering the 1st and 2nd Respondents’ written submissions dated 7th August 2018 and filed on even date in which, the Respondents have argued, that the Applicants filed their application for extension of time after an unjustified delay of 48 working days from the date of delivery of the Ruling; that the whole period of delay has not been explained satisfactorily to the Court; that the Respondents will suffer prejudice should the extension of time be granted; and, that the Application is an afterthought and an abuse of court process;
[6] I FIND as follows;
a) A copy of the Ruling and typed proceedings were availed to the Applicants on the 17th May 2018, and yet, it was not until the 12th of June 2018, that they filed the Application for extension of time. The Applicants contend that the 27-day delay is the time it took them, to prepare the application for extension of time. Such an explanation, in my view, is neither reasonable nor credible.
[7] HAVING considered the Application and the Affidavit filed in support thereof, the Replying Affidavit in opposition thereto, and the written submissions of the respective parties, I make the following Orders under Section 23(2)(b) of the Supreme Court Act, 2011 and Rules 21 and 23 of the Supreme Court Rules, 2012;
ORDERS
(i) The Application dated 12th June, 2018 and filed on even date is hereby dismissed.
(ii) The Applicants shall bear costs of the Application.
Orders accordingly.
DATED and DELIVERED at NAIROBI this 17th day of December, 2019
.............................
S. C. WANJALA
JUSTICE OF THE SUPREME COURT
I certify that this is a true copy of the original
REGISTRAR
SUPREME COURT OF KENYA
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