[2005] KECA 122 (KLR)
The court found that although the application for extension of time was properly served and the respondent had not acted promptly, the difficulties faced by the respondent's new counsel in obtaining the file from previous advocates constituted sufficient cause for granting a short adjournment. The court determined...
Source-derived case information.
- Citation
- [2005] KECA 122 (KLR)
- Parties
- Applicant: Catherine Kabura (suing as the legal representative of the Estate of Maina Mwati, deceased); Respondent: Kariuki Thiongo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 213 of 2005
- Procedural Posture
- Extension of Time Application / Ruling on Adjournment and Directions for Filing Replying Affidavit
- Outcome
- Adjournment granted with conditions.
- Legal Topics
- Extension of Time, Adjournment, Replying Affidavit, Costs of Adjournment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Catherine Kabura (suing as the legal representative of the Estate of Maina Mwati, deceased)
Applicant
Kariuki Thiongo
Respondent
Procedural Posture
Extension of Time Application / Ruling on Adjournment and Directions for Filing Replying Affidavit
Legal Issues
- 1 Whether the respondent should be granted an adjournment to file a replying affidavit despite delay by previous advocates.
- 2 Whether the applicant would suffer prejudice if the adjournment is granted.
- 3 Whether costs should be awarded for the adjournment.
Ratio Decidendi
The court found that although the application for extension of time was properly served and the respondent had not acted promptly, the difficulties faced by the respondent's new counsel in obtaining the file from previous advocates constituted sufficient cause for granting a short adjournment. The court determined that no prejudice would be suffered by the applicant if the adjournment was granted, provided that the respondent pays the costs of the adjournment. The respondent was therefore allowed seven days to file and serve a replying affidavit and to pay the applicant KES 4,000 as costs for the adjournment, failing which execution for costs would issue immediately.
Court Disposition
Adjournment granted with conditions.
Orders
- Respondent to file and serve a replying affidavit, if any, within 7 days.
- Respondent to pay applicant costs of KES 4,000 for the adjournment within 7 days.
Full Case Text
Judgment text and source record
7 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEALAT NAKURU(CORAM: WAKI, J.A. (IN CHAMBERS)Civil Application NAI 213 of 2005 (NAK.10/05)BETWEENCATHERINE KABURA (suing as the legal representativeof the Estate of MAINA MWATI (deceased) ……………………… APPLICANTANDKARIUKI THIONGO ………….………………..……………….. RESPONDENT
(Application for extension of time within which to lodge and serve a notice of appeal and a record of appeal out of time from a judgment of the High Court of Kenya at Nakuru (Justice Rimita) dated 23 rd June, 2000 in H.C.C.A. NO. 39 OF 1996) **********************R U L I N G
Mr. Gai who now appears for the respondent since 25th August, 2005 informs me that the respondent has problems with his previous lawyers who have not released the file to him. As such, he has been unable to file a replying affidavit to the application set down for hearing today. The application itself was served on the previous advocates in July, 2005. There has been no action taken since then and the applicants’ counsel, Mr. Kahiga, sees no reason why the matter cannot proceed.
It is indeed so, that the application was timeously served and the respondent should have, if so inclined, filed and served a replying affidavit. I appreciate, however, the difficulties expressed by Mr. Gai in obtaining the necessary instructions in the matter. I have looked at the subject matter of file application and it involves land. The respondent has not applied for any adjournment before. I see no prejudice to the applicant if a short adjournment is granted and costs are paid for the delay caused.
Accordingly, I grant the adjournment sought. The respondent shall file and serve an affidavit in reply, if any, within 7 days of today’s date. The respondent shall also within the same period pay the costs of this adjournment to the applicant assessed at Shs.4,000/= . In default of compliance with the order for
payment of costs, execution shall issue forthwith. Dated and delivered at Nakuru this 28th day of September, 2005. P.N. WAKI ……………………. JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR