Please Wait. Searching ...
|Case Number:||Civil Application 55 of 2011|
|Parties:||Joseph Karobia Gicheru v Michael Gachoki Gicheru|
|Date Delivered:||08 Jul 2011|
|Court:||Court of Appeal at Nyeri|
|Judge(s):||Joseph Gregory Nyamu|
|Citation:||Joseph Karobia Gicheru v Michael Gachoki Gicheru  eKLR|
|Case History:||(An application for extension to file record of appeal out of time from the judgment of the High Court of Kenya at Nyeri (Kasango, J) dated 29th April, 2008 in HCCA NO. 96 OF 1999)|
|History Docket No:||HCCA NO. 96 OF 1999|
|History Judges:||Mary Muhanji Kasango|
|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|
Mr Nganga concedes that after the judgment of the court on 29th April, 2008, the firm then acting for the applicant did file a the Notice of Appeal within the stipulated period but failed to apply for proceedings within the stipulated time. After his firm was engaged on 26th September, 2009, Mr Ng’ang’a submitted that the time for filing the record, namely the 60 days had already expired and his firm then concentrated on seeking an order for stay hence the delay because the application for stay was heard on 25th May, 2010 and ruling given on 24th June, 2010, when the Court of Appeal gave an order of stay preserving the status quo.
Mr Nganga also submitted that his firm applied for proceedings on 1st July, 2010, which were certified ad collected on 25th November, 2010, and that his firm subsequently prepared a record of appeal and that the applicant had good chances of success in the intended appeal. Finally, Mr Nganga submitted that no prejudice is likely to be suffered by the respondent because he does not stay in disputed land and although he concedes that there was delay, it was largely occasioned by the previous firm. He further invited the Court to note the effect of its own ruling on 24th June, 2010, is to effect anticipate the filing of an appeal.
He further contended that although the applicants counsel was appointed on 26th September, 2009, he did not apply for proceedings for almost 10 months, and this delay has not been explained.
The factors which govern rule 4 applications were well set out in the case of MUTISO VS MWANGI, 1997 KLR 630 (CAK), where it was held:
If the above issues were the only ones which merit a determination, my instructions would have been to reject the application to extend time for failure to adhere to the principles enunciated in the Mutiso case. However, due to this Court’s ruling of 24th June, 2010, which ruling anticipates an appeal, I consider that the court’s ruling by a three judge bench should be respected and could not have been rendered in vain. The effect of not allowing this application would be to negate a full Court ruling. I note that the ruling was made in a stay application brought before this application for extension of time was heard.
For this reason and pursuant to the letter and spirit of the overriding objection, I would allow the application for extension of time and order that the applicant files and serves a record of appeal within fourteen (14) days.
In the circumstances, I award the costs to the respondent in any event.
It is so ordered.