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|Case Number:||Civil Application 304 of 2010|
|Parties:||JOSEPH KIRWEYA KAHWAI & 5 OTHERS v CHARLES KIRWEYA KAHWAI & 5 OTHERS|
|Date Delivered:||01 Dec 2011|
|Court:||High Court at Nyeri|
|Judge(s):||John walter Onyango Otieno|
|Citation:||JOSEPH KIRWEYA KAHWAI & 5 OTHERS v CHARLES KIRWEYA KAHWAI & 5 OTHERS  eKLR|
|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|
I have before me a notice of Motion dated 18th November, 2010 but filed on 6th December, 2010 in which the applicants Joseph Kirweya Kahwai and five others are seeking orders against Charles Kirweya Kahwai and five others as follows:-
The grounds set out in support of the application are:-
There is an affidavit in support of the application sworn by the second applicant, Githinji Kahwai, which on the main, merely highlights the grounds set out in support of the application I have reproduced hereinabove. Together with that affidavit, are annextures which are the extracted order of court given on 24th November, 2009, Notice of Appointment of advocates, extracted order of 23rd July, 2010. Memorandum of Appeal (I presume it is a draft Memorandum of Appeal) and Notice of Appeal.
“(i) In all grounds put forward none of them states why the applicant did not set in motion the process of instituting his appeal in accordance with the Rules of the Court and the superior court.
In his address to the court, Mr. Kariuki, the learned counsel for the applicants, urged me to note that the applicants never slumbered for as soon as the offending ruling of the superior court was delivered, they sought review of the same order and when that review application was refused, they moved to this Court by way of this application. He stated further that the intended appeal has good chance of success and that as the dispute is between members of a family they should be given a chance to put forward their grievances to avoid any further and future feuds. Mr. Wahome, the learned counsel for the respondents, on the other hand saw no merit in the application. In his submissions, the delay period was inordinate when one considers it from 24th November, 2009 when the ruling was delivered to the date of filing the application or from the 23rd July, 2010 when the review application was refused to the date of filing this application. In the first instance, the delay period was over one year whereas in the second instance, it was four and a half months. This delay period, whichever it is, has not been explained according to Mr. Wahome. Further, there is no material annexed to enable the Court form an informed view and exercise its discretion as to whether the intended appeal would be arguable as documents such as proceedings and ruling of the court both in respect of the ruling of 24th November, 2009 and the one of 23rd July, 2010 were not annexed to the application. Thus, Mr. Wahome contended there is no material the Court would look at so as to exercise its discretion as required by law. To that effect, Mr. Wahome referred me to the ruling of Shah, J.A., (as he then was) in the case of Dr. W.G. Machage t/a Pastor Machage Memorial Hospital vs. Charles Mageto t/a D’Akianga Stationers, C.A Civil Application No. Nai. 28 of 2001 (NRB) unreported and contended that without those annextures, the court had no alternative but to dismiss the application.
The application is brought pursuant to Rule 4 of this Courts Rules. The guiding principles in respect of such an application are now well settled in the many decisions of this Court. These are that the applicant has to demonstrate the period of delay; has to give an explanation for that delay; has to show that the appeal, if one has been filed or the intended appeal where one has not been filed is arguable (but without going into the merits of the intended appeal) and that the respondents would not suffer prejudice if the court granted the extension sought. The list is not exhaustive as indeed it cannot be, it being that the court has unfettered discretion on the matter. That discretion, however, must not be exercised capriciously or upon the whims of the court. It must be exercised judiciarily. This Court’s decision in the case of Paul M. Waweru & 2 Others (2003) KLR 361, sums it all. The Court stated:-
In the Notice of Motion before me, the ruling the applicants seek to appeal from was delivered on 24th November, 2009. The applicants were not satisfied but instead of appealing to the Court against it, they applied for review of it in the High Court. That review application was refused on 23rd July, 2010. It is not stated when they filed application for review as copies of that application were not annexed to the application, but whenever it was filed, I am prepared to give the benefit of doubt to the applicants and assume it was timeously filed. I will thus take the time for purposes of the intended appeal to have started running from the date the review application was rejected which was on 23rd July, 2010 as this is the date from which they had to decide on whether to appeal to this Court or not. They came to this Court by way of this application on 6th December, 2010. That is after about 135 days or about 4 ½ months. That is the delay period which has to be explained or for which a reason needed to be given. What is the reason given for that delay? None. No effort has been made from the record before me to give any reason for that delay period of 135 days or 4 ½ months. What about the possibility of the success of the intended appeal. Without going into the merits, I find it difficult to consider this aspect as the record before me lacks the ruling that it is intended to appeal from. There are no pleadings and/or proceedings and all that is annexed are extracted orders and a copy of what I think is a draft memorandum of appeal. I can make neither head nor tail of what are in issue in the entire saga. As to the issue of prejudice to the respondent, I was not addressed on it and so I cannot address it informatively.