[2000] KECA 232 (KLR)
The court held that regardless of the explanation for the delay, the application was fatally defective because it did not comply with the mandatory procedural requirement to state the grounds of the application as stipulated by Rule 42(1) of the Court of Appeal Rules. The applicant's counsel conceded that no such...
Source-derived case information.
- Citation
- [2000] KECA 232 (KLR)
- Parties
- Applicant: Juma Mohammed Tuwano; Respondent: Mohammed Hamisi Mwabwaguzi; Respondent: Salim Hamisi Mwabwaguzi; Respondent: Masuni Mwachibuko Mwabwaguzi; Respondent: Salim Abdulrahiman Mwabwaguzi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 146 of ??
- Procedural Posture
- Civil Application / Application for Extension of Time to File Record of Appeal
- Outcome
- Application struck out with costs.
- Judges
- EO O'Kubasu
- Legal Topics
- Extension of Time, Court of Appeal Rules, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Juma Mohammed Tuwano
Applicant
Mohammed Hamisi Mwabwaguzi
Respondent
Salim Hamisi Mwabwaguzi
Respondent
Masuni Mwachibuko Mwabwaguzi
Respondent
Salim Abdulrahiman Mwabwaguzi
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Record of Appeal
Legal Issues
- 1 Whether the application for extension of time to file the record of appeal was competent in light of non-compliance with the Court of Appeal Rules.
- 2 Whether failure to state the grounds of the application as required by Rule 42(1) rendered the application fatally defective.
Ratio Decidendi
The court held that regardless of the explanation for the delay, the application was fatally defective because it did not comply with the mandatory procedural requirement to state the grounds of the application as stipulated by Rule 42(1) of the Court of Appeal Rules. The applicant's counsel conceded that no such grounds were stated. As a result, the application was found to be incompetent and was struck out with costs. The court emphasized that procedural compliance is essential and cannot be overlooked, even where there may be a sympathetic explanation for delay.
Court Disposition
Application struck out with costs.
Orders
- The application is struck out with costs.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT MOMBASA CORAM: O'KUBASU, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 146 OF 2000 BETWEEN
JUMA MOHAMMED TUWANO ............................... APPLICANT AND 1. MOHAMMED HAMISI MWABWAGIZO 2. SALIM HAMISI MWABWAGIZO 3. MASUNI MWACHIBUKO MWABWAGIZO 4. SALIM ABDULRAHIMAN MWABWAGIZO ................. RESPONDENTS
An application for extension of time to file and serverecord of appeal in an intended appeal from ajudgment of the High Court of Kenya at Mombasa
(Waki, J.) dated 7th December, 1998 in H.C.C.C. NO. 1 OF 1991) **************** R U L I N GThis is an application by way of Notice of Motion brought under Rules 3 and 4 of the Court of Appeal Rules in which the applicant is seeking the following orders:-
"1. THAT the time limited for filing the Record of Appeal be extended. 2. THAT the Record of Appeal be filed within such extended time. 3. THAT the costs of and incidentals to this application abide the result of the said appeal."
Mr. Gathuku who appeared for the applicant gave a brief background to this application which in his view ought to be granted as the applicant fell sick and hence was not in a position to give instructions in good time. Mr. Ngibuini for the respondent opposed the application on the ground that it did not only lack merit but was not brought in compliance with Rule 42(1) of the Rules of this court which states:-
"Subject to the provisions of sub-rule (3) and to any other rule allowing informal application, all applications to the Court shall be by motion, which shall state the grounds of the application." I think this application can be disposed of without considering the explanation given for the delay. I appreciate that the applicant was sick but the application must be brought in accordance with the rules of this court. The rules clearly state that the applicant shall state the grounds upon which the application is brought.
Here even Mr. Gathuku conceded that no such grounds were stated. Hence, the application is incompetent. Consequently, I have no alternative but to strike it out with costs. Those will be my orders.
Dated and delivered at Mombasa this 28th day of July, 2000.
E. O. O'KUBASUJUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR