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|Case Number:||Civil Application 277 of 2010|
|Parties:||George Kirianki Laichena v Michael Mutwiri|
|Date Delivered:||08 Jul 2011|
|Court:||Court of Appeal at Nyeri|
|Judge(s):||Joseph Gregory Nyamu|
|Citation:||George Kirianki Laichena v Michael Mutwiri  eKLR|
|Case History:||(An application for extension to file & serve record of appeal out of time from the judgment of the High Court of Kenya at Meru (Ouko, J) dated 12th March, 2009 in HCCC NO. 14 OF 2001)|
|History Docket No:||HCCC NO. 14 OF 2001|
|History Judges:||William Ouko|
|Case Outcome:||Application allowed|
|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|
This is a rule (4) application which principally seeks two orders, namely:
(1) That the notice of appeal dated 18th March, 2009 and lodged in the superior court on the same date be deemed properly filed and served.
The applicant has reinforced the above grounds in the affidavit in support of the application sworn on 23rd November, 2010, which gives further reasons for the delay as delay in issuing the certificate of delay; delay occasioned by the illness of the applicant’s son and further delay due to an application for extension of time which was withdrawn on 18th November 2010; and that the appeal as per the draft memorandum of appeal does raise important issues for determination and which appeal has chances of success in that the applicant intends to contend inter alia that evidence of two important witnesses was excluded by the superior court and that the evidence could have made a difference in allocating responsibility for the accident and finally that the application for extension of time was not opposed.
On my part after taking into account the fact that although the respondents were duly served, they did not respond to the application, I have further taken into account the guidelines set out in the case of MUTISO VS MWANGI  KLR 630 CAK, where it was held:
Since the Courts duty under the Appellate Jurisdiction Act, is to give effect to the overriding objective (O2) both in the exercise of its powers and in the interpretation of its provisions, I think in every situation before the Court the overriding objective shall hence forth operate like the beetroot which when placed in a dish of different foods gives its powerful colour to all the foods in the dish. This is because in every situation before it the Court is exercising power. Like a wellspring the O2 principle should be used to quench the thirst for both procedural and substantive justice. I think it has similar dimension under the Civil Procedure Act.
In my view, the applicant has in the circumstances described, endeavoured to honour important procedural timelines which were clearly intended to speed up the hearing of the intended appeal.
In the matter before me although fairly straight forward, I believe I have walked the talk in that with the factual background as outlined above, and after applying the rainbow effect, as defined above, it would be just to grant the application for extension of time.
In the result, I allow the application in terms of prayer 1 and further order that the record of appeal be filed and served within fourteen (14) days from the date hereof. It is further ordered that the costs of this application abide the outcome of the intended application.
It is so ordered.
Dated and delivered at Nyeri this 8th day of July, 2011.