[2024] KECA 436 (KLR)
The court found that the parties had entered into a consent to compromise the application for extension of time to file and serve the record of appeal. The respondents confirmed their agreement to the consent, and there was no opposition to the application. In the exercise of its discretion and in recognition of the...
Source-derived case information.
- Citation
- [2024] KECA 436 (KLR)
- Parties
- Applicant: Chief Officer, Lands, Housing & Physical Planning County Government of Mombasa; Applicant: County Government of Mombasa; Respondent: Abdullah Ahmed Gele t/a Buxton Filling Station; Respondent: Buxton Point Apartments Ltd; Respondent: Hon Suleiman Shabal; Respondent: Roton Construction Co Ltd; Respondent: The Chief Land Registrar
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) E086 of 2023
- Procedural Posture
- Civil Appeal / Application for Extension of Time to File and Serve Record of Appeal
- Outcome
- application allowed by consent
- Judges
- AK Murgor
- Legal Topics
- Extension of Time, Record of Appeal, Contempt of Court Orders, Consent Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chief Officer, Lands, Housing & Physical Planning County Government of Mombasa
Applicant
County Government of Mombasa
Applicant
Abdullah Ahmed Gele t/a Buxton Filling Station
Respondent
Buxton Point Apartments Ltd
Respondent
Hon Suleiman Shabal
Respondent
Roton Construction Co Ltd
Respondent
The Chief Land Registrar
Respondent
Procedural Posture
Civil Appeal / Application for Extension of Time to File and Serve Record of Appeal
Legal Issues
- 1 Whether the applicants have demonstrated sufficient cause for extension of time to file and serve the record of appeal out of time.
- 2 Whether the delay in filing and serving the record of appeal was adequately explained.
- 3 Whether the consent of the parties to compromise the application should be adopted by the court.
Ratio Decidendi
The court found that the parties had entered into a consent to compromise the application for extension of time to file and serve the record of appeal. The respondents confirmed their agreement to the consent, and there was no opposition to the application. In the exercise of its discretion and in recognition of the parties' consent, the court allowed the application, deeming the record of appeal as properly filed and served. The court made no order as to costs, emphasizing the consensual resolution of the application and the absence of prejudice to any party.
Court Disposition
application allowed by consent
Orders
- The application for extension of time to file and serve the record of appeal is allowed.
- The record of appeal dated 13th September 2023 and filed on 15th September 2023 is deemed as properly filed and served on all parties.
Full Case Text
Judgment text and source record
30 paragraphs
Chief Officer, Lands, Housing & Physical Planning County Government of Mombasa & another v Gele t/a Buxton Filling Station & 4 others (Civil Appeal (Application) E086 of 2023) [2024] KECA 436 (KLR) (12 April 2024) (Ruling)
Neutral citation: [2024] KECA 436 (KLR)
Republic of Kenya
In the Court of Appeal at Mombasa
Civil Appeal (Application) E086 of 2023
AK Murgor, JA
April 12, 2024
Between
Chief Officer, Lands, Housing & Physical Planning County Government of Mombasa
1st Applicant
County Government of mombasa
2nd Applicant
and
Abdullah Ahmed Gele t/a Buxton Filling Station
1st Respondent
Buxton Point Apartments Ltd
2nd Respondent
Hon Suleiman Shabal
3rd Respondent
Roton Construction Co Ltd
4th Respondent
The Chief Land Registrar
5th Respondent
(An application for the extension of time to file and serve a Record of Appeal out of time against the Ruling/Order of the Environment and Land Court at Mombasa (Naikuni, J.) delivered on 27th March 2023 in Mombasa E.L.C No. 44 of 2021 Environment & Land Petition 44 of 2021 )
Ruling
1. By a Notice of Motion dated 13th September 2023, brought pursuant to sections 3A and 3B of the Appellate Jurisdiction Act, rule 4 of the Court of Appeal Rules, 2010 and Article 159 2(d) of the Constitution, the applicants, Chief Officer, Land, Housing & Physical Planning County Government Of Mombasa And County Government of Mombasa seek (i) that this Court be pleased to extend time for lodging and serving the Record of appeal against the Judgment/Decree of the Environment and Land Court at Mombasa delivered on 27th March 2023 in Mombasa E.L.C No. 44 of 2021 Abdullahi Ahmed Gele t/a Buxton Filling Station vs the Chief Officer, Land, Housing & Physical Planning County Government of Mombasa & 6 others (ii) that the Record of appeal dated 13th September 2023 and filed on 15th September 2023 be deemed as properly filed and (iii) that the costs of this application abide the intended appeal.
2. The Notice was brought pursuant to the grounds on its face and on affidavit in support sworn by Maurice Kilonzo counsel for the applicants in which he contended that the Environment and Land Court Mombasa delivered its ruling with respect to a Notice of Motion dated 4th February 2022 on 27th March 2023 where the court found the applicants to be in contempt of the court orders and ordered for summons to issue to the applicants’ directors to appear in courton 22nd May 2023; that the applicants being aggrieved with the Ruling intend to appeal against it, and that the Notice of appeal has been duly served upon the respondents; that the delay in lodging and serving the Record of appeal was occasioned by the delay of the lower court’s Registry in supplying the applicants with the certified typed copies of the proceedings despite their having requested for them since 27th March 2023; that considering the' circumstances of the delay and the reasons explaining the delay, it was urged that this application should be allowed, and that no prejudice will be occasioned to the respondents if the orders sought are granted.
3. When the matter came up for hearing on 7th February 2024 on a virtual platform, learned counsel Ms. Oloo holding brief for Ms. Kilonzo appeared for the applicants, while learned counsel Mr. Abdiaziz appeared for the 1st respondent, and learned counsel Ms. Oloo also held brief for Ms. Thuku for the 2nd, 3rd and 4th respondents. There was no appearance for the 5th respondent though served with the hearing notice.During the hearing, counsel drew the Court’s attention to a Consent letter dated 20th November 2023 signed by the parties indicating that they are agreeable to compromising the applicants’ application dated 13th September, 2023.
4. Therefore, the respondent’s counsel having confirmed the position to be as set out in the Consent letter dated 20th November, 2023, the application be and is hereby is allowed. Consequently, the Record of Appeal dated 13th September 2023 and filed on 15th September 2023 is hereby deemed as properly filed and served on all the parties. No orders as to costs.It is so ordered.
DATED AND DELIVERED AT MOMBASA THIS 12TH DAY OF APRIL, 2024I certify that this is a true copy of the originalDEPUTY REGISTRARA. K. MURGOR...............................JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR