1.Before me is a Notice of Motion dated April 24, 2023 made under rules 4, 41, 43, 44 and 77(2) of the Court of Appeal Rules in which the Applicant, Nextgen Office Suites Limited, prays for:
2.The applicant’s Motion is supported by the annexed affidavit of Ramesh Kumar Kantilal Amlani, a director of the applicant company, sworn on April 24, 2023 essentially deposing to the grounds on which the application is made, namely: that the impugned ruling and orders were delivered on March 16, 2023; that the applicant was aggrieved thereby and wishes to move this Court on appeal; that the time allowed to lodge an appeal and file a notice of appeal lapsed on March 31, 2023; that the delay in filing the notice of appeal was occasioned by the applicant’s change of advocates and the appurtenant delay in handing over the applicant’s records and secure instructions to lodge the appeal; that the applicant had initially sought review of the impugned ruling and orders, but withdrew its application and preferred an appeal; that the delay in lodging the appeal is sufficiently explained, and is not inordinate; that the application is brought in good faith and will not prejudice the respondent if the orders sought are granted, as they continue to enjoy quiet possession of the units in issue situate on the suit property; and that the applicant has an arguable appeal with a good chance of success. It prays that the application be allowed.
3.The supporting affidavit merely restates the grounds aforesaid and depones further to the grounds advanced in support of the application for stay of execution pending appeal, which do not fall within my remit to consider.
4.In response to the application, the 1st to 4th respondents have filed a replying affidavit of George Kanyi, the 1st respondent, sworn on April 28, 2023 on his own behalf and on behalf of the 2nd to 4th respondents. However, there is no response on record for the 5th to 8th respondents. The 1st to 4th respondents contend that the applicant does not deserve the orders sought having elected to file an application for review instead of an appeal, and having exhausted time and thereafter withdrew its applications for review and stay orders on April 18, 2023. The rest of the grounds are advanced in support of the applicant’s Motion for stay of execution, which falls outside my jurisdiction to determine.
5.It is noteworthy that the impugned ruling and orders were delivered on March 16, 2023; that the applicant’s Motion seeking extension of time to file the intended appeal is supported by the affidavit of Ramesh Kumar Kantilal Amlani to which there is annexed a draft notice of appeal; and that no notice of appeal has been lodged and served in compliance with the mandatory provisions of rules 77 and 79 of the Court of Appeal Rules, 2022.
8.In so far as a notice of appeal is a jurisdictional pre-requisite, nothing flows from a non-existent notice to invoke this Court’s jurisdiction to grant the orders sought pursuant to Rule 4 or any other Rule. In effect, its hands are tied, so to speak. I so hold cognisant of the general principle that it is only in exceptional circumstances that this Court would raise its hand to slam shut the door to justice on the face of a litigant despite the constitutional guarantee of access to justice as enshrined in Article 48.
10.I also hasten to add that it matters not that the overriding objectives set out in sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9) confer powers on this Court to dispense justice with greater latitude (see City Chemist (NBI) Mohamed Kasabuli suing for and on behalf of the Estate of Halima Wamukoya Kasabuli vs Orient Commercial Bank Limited Civil Appeal No Nai 302 of 2008 (UR No 199 of 2008) (Unreported).
11.Having found that there is no notice of appeal properly on record, I find and hold that I have no jurisdiction to determine the applicant’s Motion or grant any of the orders sought. Accordingly, I find that the applicant’s Motion dated March 13, 2023 seeking extension of time in terms of prayer No 4 is incompetent and is hereby struck out.