[2019] KECA 599 (KLR)
The application was dismissed as grossly incompetent because it failed to clearly specify whether it sought leave to appeal the ruling of Musinga, JA out of time or to have a reference made to the full court. Furthermore, the application did not address the intervening dismissal by Kantai, JA, which was the...
Source-derived case information.
- Citation
- [2019] KECA 599 (KLR)
- Parties
- Applicant: Jacinta Wanza Makenzi; Respondent: Agnes Mutinda Kithusi; Respondent: Marden Kelli; Respondent: Kevin Mutinda Kelli; Respondent: Sylvia Mwende Kelli; Respondent: Peter Mutinda Munyao
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 240 of 2017
- Procedural Posture
- Civil Application / Ruling on Motion for Leave to File Reference to Full Court Against Single Judge's Ruling
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Appeals Process, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacinta Wanza Makenzi
Applicant
Agnes Mutinda Kithusi
Respondent
Marden Kelli
Respondent
Kevin Mutinda Kelli
Respondent
Sylvia Mwende Kelli
Respondent
Peter Mutinda Munyao
Respondent
Procedural Posture
Civil Application / Ruling on Motion for Leave to File Reference to Full Court Against Single Judge's Ruling
Legal Issues
- 1 Whether the applicant is entitled to leave to file a reference to the full court against the ruling of a single judge out of time.
- 2 Whether the application properly addresses the relevant prior dismissal by Kantai, JA.
Ratio Decidendi
The application was dismissed as grossly incompetent because it failed to clearly specify whether it sought leave to appeal the ruling of Musinga, JA out of time or to have a reference made to the full court. Furthermore, the application did not address the intervening dismissal by Kantai, JA, which was the operative decision at the time. The court found that the applicant's motion improperly bypassed the necessary procedural step of seeking reinstatement of the dismissed motion, rendering the current application procedurally defective and without merit. The court emphasized the importance of compliance with the Court of Appeal Rules, particularly Rule 55, and the necessity for clarity...
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
29 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OUKO, (P), (IN CHAMBERS)
CIVIL APPLICATION NO. 240 OF 2017
BETWEEN
JACINTA WANZA MAKENZI..................................................APPLICANT
AND
AGNES MUTINDA KITHUSI.........................................1STRESPONDENT
MARDEN KELLI..............................................................2NDRESPONDENT
KEVIN MUTINDA KELLI..............................................3RDRESPONDENT
SYLVIA MWENDE KELLI..............................................4THRESPONDENT
PETER MUTINDA MUNYAO.........................................5THRESPONDENT
(In the matter of extension of time to file a reference to full court against the Ruling
and order of the single Judge of the appellate Court at Nairobi (Musinga, JA)
dated 27thApril, 2018 InCivil Appl. No. 240 of 2017)
*********
RULING
On 27th April, 2018, Musinga, JA, sitting as a single judge declined to extend time within which the applicant would appeal the decision of the High Court rendered on 6th October, 2014. The applicant then sought, in a motion dated 28th June, 2018 and pursuant to Rules 4 and 55(1)(b) of the Court of Appeal Rules
“leave ....to file a reference to a full court against the ruling and orders delivered on 27thApril, 2018 by Hon. Justice D.K Musinga.....”.
When the application came up on 8th November, 2018, the applicant’s counsel or the applicant were not in attendance despite service with the hearing notice. Kantai, JA, on being moved by the respondents’ counsel dismissed the motion, I suppose under Rule 56 of the Court’s Rules. It is the reinstatement of that motion that ought to have concerned the applicant. Instead the instant motion frog-lips the decision of Kantai, JA and seeks go back to Musinga, JA’s ruling.
Ordinarily once a single judge rejects an application for extension of time, under Rule 55 an aggrieved applicant may apply in writing to the Registrar within seven days to place the matter before a full court to varied, discharged or reversed the decision of a single judge.
By bringing this application, it is not clear whether the applicant would like me to grant leave to her to “appeal the ruling dated 27th April, 2018 out of time”, as she has averred in her affidavit or to grant leave to have a reference made to a full court in respect of Musinga, JA’s decision. There is no mention at all of the decision of Kantai, JA.
This application is grossly incompetent and bereft of any substance. I accordingly dismiss it with costs.
Dated and delivered at Nairobi 21stday of June, 2019.
W. OUKO, (P)
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
DEPUTY REGISTRAR