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|Case Number:||Civil Application 138 of 2011|
|Parties:||Joseph Oyula v Ramji Devji Vekaria|
|Date Delivered:||23 Sep 2011|
|Court:||Court of Appeal at Eldoret|
|Judge(s):||Emmanuel Okello O'Kubasu|
|Citation:||Joseph Oyula v Ramji Devji Vekaria  eKLR|
|Case History:||An application for leave to file and serve notice of appeal out of time from the ruling of the High Court of Kenya at Eldoret (Mwilu, J) dated 9th December, 2009 in H.C.C.C NO 92 OF 2007|
|Parties Profile:||Individual v Individual|
|History Docket No:||92 OF 2007|
|History Judges:||Philomena Mbete Mwilu|
|History County:||Uasin Gishu|
|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|
Before me is an application by way of Notice of Motion brought under Rule 4 of the Court of Appeal Rules. The application seeks the extension of time in which to file and serve a notice of appeal and record of appeal. The application is brought on the following grounds:-
(d) The applicant duly filed a record of appeal and served the same within seven days.
(e) The applicant’s appeal was struck out by this Honourable Court on the 25th March, 2011 on the grounds that the record of appeal was filed out of time.
Further to the foregoing grounds the application is supported by the sworn affidavits of Godfrey Nathan Kitiwa the advocate who has the conduct of this application and Joseph Oyula who is the applicant.
When the application came up for hearing Miss Sindani appeared for the applicant while Mr. P. Gicheru appeared for the respondent. In the submission before me, Miss Sindani gave a brief background to the application on how the applicant’s previous appeal was struck out on 25th March 2011 on the ground that it was incompetent. Miss Sindani then went on to explain why there was a delay in filing the struck out appeal. She relied on three decisions of this Court in support of the submissions in urging me to exercise this Court’s discretion in favour of the applicant.
In opposing this application, Mr. Gicheru pointed out that the ruling of this Court striking out the previous appeal was delivered on 25th March 2011 while this application was filed on 25th May 2011. Mr Gicheru submitted that as nothing has been said about that delay of two months this Court has no material on which to exercise its discretion. Mr Gicheru therefore asked me to dismiss this application as, in his view, the rules of this Court have not been complied with.
The background facts leading to the filing of this application are fairly simple and straightforward. The applicant filed a civil appeal in this Court which was struck out on 25th March 2011.
It was then upon the applicant and his legal advisers to start the appeal process afresh. In Njuguna v Magichu & 3 Others (2003) KLR 507 at p 509 Waki JA stated inter alia:
“There was no inordinate delay in applying for reinstitution of the appeal which is the right of the applicant as was stated in C APP NAI 337/96 Jedida Alumasa & 3 Others v SS Kositany ( UR where Bosire Ag JA ( as he then was) state:-
In Waweru & Another v Kirori (2003) KLR 448 at p. 451 I started inter alia:-
“ No valid reason has been given for this long delay. Pausing here for a moment it cannot be denied that there was inordinate delay which has not been adequately explained. The respondent is certainly prejudiced by this long delay since this has kept him away from the fruit of his judgment. The rules of the Court must, surely, be complied with.
Having considered the submissions of Miss Sindani and the background facts to this application I am not satisfied that she has given any reason why there was a delay of two months in restarting the appeal process. It is not enough to say that it was the mistake of the advocate on record.
In view of the foregoing, I find no merit in this application and order that the same be and is hereby dismissed with costs to the respondent.