[2024] KECA 979 (KLR)
The court found that the applicants failed to demonstrate sufficient grounds to justify the certification of urgency for their application seeking extension of time to file and serve a notice of appeal and record of appeal. The decision of the ELC was delivered over a year prior, and the application for extension...
Source-derived case information.
- Citation
- [2024] KECA 979 (KLR)
- Parties
- Applicant: Anne Wangui Kabiru; Applicant: Marion Wanjiku Kabiru; Applicant: George Kariuki Kabiru; Applicant: James Muiruri Kabiru; Respondent: Kariuki Njau
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application E080 of 2024
- Procedural Posture
- Extension of Time Application / Ruling on Urgency and Directions for Hearing
- Outcome
- Application for certification of urgency refused; application to be heard in the normal course.
- Judges
- SG Kairu
- Legal Topics
- Extension of Time, Notice of Appeal, Record of Appeal, Urgency Certification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anne Wangui Kabiru
Applicant
Marion Wanjiku Kabiru
Applicant
George Kariuki Kabiru
Applicant
James Muiruri Kabiru
Applicant
Kariuki Njau
Respondent
Procedural Posture
Extension of Time Application / Ruling on Urgency and Directions for Hearing
Legal Issues
- 1 Whether the applicants have demonstrated sufficient grounds for the application to be certified as urgent.
- 2 Whether the delay in filing the notice and record of appeal warrants fast tracking of the application.
Ratio Decidendi
The court found that the applicants failed to demonstrate sufficient grounds to justify the certification of urgency for their application seeking extension of time to file and serve a notice of appeal and record of appeal. The decision of the ELC was delivered over a year prior, and the application for extension was not made until February 2024, indicating a lack of contemporaneous urgency or extreme prejudice. The court, therefore, declined to fast track the application and directed that it be heard in the normal course.
Court Disposition
Application for certification of urgency refused; application to be heard in the normal course.
Orders
- The application is to be fixed for hearing in the normal course.
Full Case Text
Judgment text and source record
26 paragraphs
Kabiru & 3 others v Njau (Civil Application E080 of 2024) [2024] KECA 979 (KLR) (26 July 2024) (Ruling)
Neutral citation: [2024] KECA 979 (KLR)
Republic of Kenya
In the Court of Appeal at Nairobi
Civil Application E080 of 2024
SG Kairu, JA
July 26, 2024
Between
Anne Wangui Kabiru
1st Applicant
Marion Wanjiku Kabiru
2nd Applicant
George Kariuki Kabiru
3rd Applicant
James Muiruri Kabiru
4th Applicant
and
Kariuki Njau
Respondent
(Application for extension of time to file a Notice of Appeal and Record of Appeal in an intended appeal from the Judgment and Decree of the High Court of Kenya at Nairobi (Okong’o, J.) dated 18th April 2023 in ELC Appeal No. 93 of 2019)
Ruling
1. On 1st March 2024, I refused to certify as urgent, the applicants’ application dated 22nd February 2024 seeking leave of the Court to file and serve a notice of appeal and the Memorandum and Record of Appeal in respect of a judgment of the ELC delivered on 18th April 2023 out of time. Four months after I declined to do so, the advocates for the applicants wrote a letter dated 1st July 2024 to the Deputy Registrar of the Court requesting for a hearing inter partes under Rule 49(5) of the Court of Appeal Rules. The matter was accordingly fixed for inter partes hearing before me on 15th July 2024 when learned counsel Mr. Njeru appeared for the applicants. There was no appearance for the respondent despite notice of hearing having been served.
2. Having re-considered the contents of the Certificate of Urgency by David Njeru Nyaga and his affidavit in support of urgency sworn on 22nd February 2024, as well as the submissions by Mr. Njeru, I am still not persuaded that sufficient grounds have been made out to justify the fast tracking of the application. As Odunga, J.A. recently stated in Kenya Medical Supplies Agency vs. Revital Health Care (EPZ) Limited and 2 others, Civil Appeal No. 65 of 2016, urgency arises when an event occurs which requires contemporaneous resolution, the absence of which would cause extreme prejudice. In this case the decision of the ELC the subject of the intended appeal was rendered over a year ago, and the present application was not made until February 2024.
3. I direct that the application be fixed for hearing in the normal course.
4. It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JULY, 2024. S. GATEMBU KAIRU, FCIArb……………..…………..…………….JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.