[2021] KECA 121 (KLR)
The court found that although the certificate of delay exhibited by the applicants was incomplete and did not specify the period required for preparation of proceedings or when they were supplied, the circumstances justified the application. The court exercised its discretion to allow the extension of time, noting...
Source-derived case information.
- Citation
- [2021] KECA 121 (KLR)
- Parties
- Applicant: Ali Didi Aboud; Applicant: Watamu Worship Center (G.O.C); Applicant: Athman Shaibu Shoshi; Applicant: A.O. Athman; Applicant: Mulki Hassan; Applicant: Mohamed Heri; Applicant: Mwanaisha Mohamed; Applicant: Omar Fundi; Applicant: Hassan Abdullah; Applicant: Jackline Mwania; Applicant: Annastacia Kahama; Applicant: Hildagad Gashamba; Applicant: Joicye Nyokabi; Applicant: Bwana Fae Ustahidi; Applicant: Emmanuel Charo Tinga; Applicant: Helen Murungi; Applicant: Helen Makeba; Applicant: Saidi Bwana; Applicant: Baraka Kaberia; Respondent: Mohamed Sadeeeque Khan
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) 20 of 2020
- Procedural Posture
- Civil Appeal Application / Application for Extension of Time to File and Serve Record of Appeal
- Outcome
- application allowed
- Judges
- SG Kairu
- Legal Topics
- Extension of Time, Appeal Procedure, Certificate of Delay, Service of Record, Environment and Land Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Ali Didi Aboud
Applicant
Watamu Worship Center (G.O.C)
Applicant
Athman Shaibu Shoshi
Applicant
A.O. Athman
Applicant
Mulki Hassan
Applicant
Mohamed Heri
Applicant
Mwanaisha Mohamed
Applicant
Omar Fundi
Applicant
Hassan Abdullah
Applicant
Jackline Mwania
Applicant
Annastacia Kahama
Applicant
Hildagad Gashamba
Applicant
Joicye Nyokabi
Applicant
Bwana Fae Ustahidi
Applicant
Emmanuel Charo Tinga
Applicant
Helen Murungi
Applicant
Helen Makeba
Applicant
Saidi Bwana
Applicant
Baraka Kaberia
Applicant
Mohamed Sadeeeque Khan
Respondent
Procedural Posture
Civil Appeal Application / Application for Extension of Time to File and Serve Record of Appeal
Legal Issues
- 1 Whether the applicants have established sufficient basis for extension of time to file and serve the record of appeal out of time.
- 2 Whether the delay in filing the record of appeal was adequately explained.
- 3 Whether the certificate of delay was valid and sufficient for purposes of Rule 82 of the Court of Appeal Rules.
Ratio Decidendi
The court found that although the certificate of delay exhibited by the applicants was incomplete and did not specify the period required for preparation of proceedings or when they were supplied, the circumstances justified the application. The court exercised its discretion to allow the extension of time, noting that the defect in the certificate of delay necessitated the application, which would have been unnecessary had a proper certificate been issued. The court was satisfied that the applicants acted promptly after judgment, and there was no evidence of prejudice to the respondent. The application was allowed in terms of the prayers sought, and the applicants were directed to serve...
Court Disposition
application allowed
Orders
- The application for extension of time is allowed in terms of prayers 2, 3 and 4 of the application.
- The applicants shall serve the record of appeal on the respondent within 7 days of delivery of this ruling.
Full Case Text
Judgment text and source record
57 paragraphs
Aboud & 18 others v Khan (Civil Appeal (Application) 20 of 2020) [2021] KECA 121 (KLR) (5 November 2021) (Ruling)
Neutral citation number: [2021] KECA 121 (KLR)
Republic of Kenya
In the Court of Appeal at Malindi
Civil Appeal (Application) 20 of 2020
SG Kairu, JA
November 5, 2021
Between
Ali Didi Aboud
1st Applicant
Watamu Worship Center (G.O.C
2nd Applicant
Athman Shaibu Shoshi
3rd Applicant
A.O. Athman
4th Applicant
Mulki Hassan
5th Applicant
Mohamed Heri
6th Applicant
Mwanaisha Mohamed
7th Applicant
Omar Fundi
8th Applicant
Hassan Abdullah
9th Applicant
Jackline Mwania
10th Applicant
Annastacia Kahama
11th Applicant
Hildagad Gashamba
12th Applicant
Joicye Nyokabi
13th Applicant
Bwana Fae Ustahidi
14th Applicant
Emmanuel Charo Tinga
15th Applicant
Helen Murungi
16th Applicant
Helen Makeba
17th Applicant
Saidi Bwana
18th Applicant
Baraka Kaberia
19th Applicant
and
Mohamed Sadeeeque Khan
Respondent
(An application for extension of time to file and serve a record of appeal out of time against the Judgment/Decree of the Environment & Land Court at Malindi (Olola, J.) delivered on 18th September 2020 in ELC Petition No. 7 of 2013)
Ruling
1. By application dated 21st December 2020, the applicants seek orders for extension of time for lodging and service of a record of appeal from the judgment of the Environment and Land Court in ELC Petition No. 7 of 2013 between the parties hereto.
2. As stated by the Supreme Court in Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others, Supreme Court Application No. 16 of 2014 [2014] eKLRextension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court; that the party seeking extension of time has the burden to lay a basis to the satisfaction of the court; that extension of time is a consideration on a case to case basis; that delay should be explained to the satisfaction of the court; whether there will be prejudice suffered by the respondents if the extension is granted; and whether the application is brought without undue delay.
3. In his affidavit in support of the application, Athman Shaibu Shossi the 3rd applicant deposes that following the impugned judgment on 18th September 2020, the applicants’ advocates promptly applied for a copy of proceedings and filed a notice of appeal on 25th September 2020 and on 29th September 2020 respectively; that the typed proceedings were supplied on 4th December 2020 and a certificate of delay issued on that date; that the record of appeal, being Civil Appeal No. E021 of 2021 was filed alongside the present application. The applicants pray that the record of appeal be deemed as properly filed.
4. The certificate of delay exhibited appears incomplete and is not helpful at all as there is no indication therein the period that was required for the preparation of the proceedings and neither does it certify when the proceedings were supplied to the applicant’s counsel. It is perhaps the defect in the certificate of delay that necessitated this application, which would have been unnecessary with a proper certificate of delay having regard to the proviso to Rule 82 of the Court of Appeal Rules.
5. In any event, I allow the application in terms of prayers 2, 3 and 4 of the application. The applicant shall serve the record of appeal on the respondent with 7 days of delivery of this ruling. Costs of the application shall be in the appeal.
Dated and delivered at Mombasa this 5th day of November, 2021. S. GATEMBU KAIRU, FCIArb....................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR