[2024] KECA 630 (KLR)
The court held that the process of appeal is governed by statutes, rules, and procedures, which require a party to first file a notice of appeal within the stipulated period or seek leave to file the same out of time. The applicants failed to file a notice of appeal or seek extension for the notice, and instead...
Source-derived case information.
- Citation
- [2024] KECA 630 (KLR)
- Parties
- Appellant: Julius Waihinya Kang'ethe; Appellant: Kuliana Warigi Kang’Ethe; Appellant: Catherine Gathoni Kogi; Appellant: Monicah Wambui Kang'ethe; Appellant: Ng'ang'a Kang'ethe; Appellant: Kinyanjui Kang'ethe; Respondent: Muhia Muchiri Ng’Ng’A; Objector: Wahinya Kang'ethe & 11 others
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Application E043 of 2024
- Procedural Posture
- Civil Application / Application for Leave to Appeal Out of Time
- Outcome
- application dismissed with costs to the respondent
- Judges
- MA Warsame
- Legal Topics
- Extension of Time, Appeal Procedure, Notice of Appeal, Court Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Waihinya Kang'ethe
Appellant
Kuliana Warigi Kang’Ethe
Appellant
Catherine Gathoni Kogi
Appellant
Monicah Wambui Kang'ethe
Appellant
Ng'ang'a Kang'ethe
Appellant
Kinyanjui Kang'ethe
Appellant
Muhia Muchiri Ng’Ng’A
Respondent
Wahinya Kang'ethe & 11 others
Objector
Procedural Posture
Civil Application / Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants are entitled to leave to file an appeal out of time against the ruling delivered on 11th December, 2023.
- 2 Whether an application to file an appeal out of time is competent where no notice of appeal was filed or extension sought for the notice.
Ratio Decidendi
The court held that the process of appeal is governed by statutes, rules, and procedures, which require a party to first file a notice of appeal within the stipulated period or seek leave to file the same out of time. The applicants failed to file a notice of appeal or seek extension for the notice, and instead sought leave to file an appeal out of time directly. The court found this approach to be contrary to the established rules and procedures, amounting to an attempt to circumvent the prescribed process. Consequently, the application was found to be incompetent and an abuse of the court process, warranting dismissal with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
32 paragraphs
Kang'ethe & 5 others v Ng’ng’a; Kang'ethe & 11 others (Proposed Objectors) (Civil Application E043 of 2024) [2024] KECA 630 (KLR) (28 May 2024) (Ruling)
Neutral citation: [2024] KECA 630 (KLR)
Republic of Kenya
In the Court of Appeal at Nakuru
Civil Application E043 of 2024
MA Warsame, JA
May 28, 2024
Between
Julius Waihinya Kang'ethe
1st Proposed Appellant
Kuliana Warigi Kang’Ethe
2nd Proposed Appellant
catherine Gathoni Kogi
3rd Proposed Appellant
Monicah Wambui Kang'ethe
4th Proposed Appellant
Ng'ang'a kang'ethe
5th Proposed Appellant
Kinyanjui kang'ethe
6th Proposed Appellant
and
Muhia Muchiri Ng’Ng’A
Proposed Respondent
and
Wahinya kang'ethe & 11 others
Proposed Objector
(An Application to file an Appeal out of time from the Ruling of the High Court of Kenya at Nakuru (Ombwayo, J.) dated 11th December, 2023 in Nkr ELC NO. 253 of 2012 Environment & Land Case 253 of 2012 )
Ruling
1. The Notice of Motion dated 20th March, 2024 seeks two main prayers:i.That the proposed appellants be granted leave to appeal out of time against the Ruling delivered on 11th December, 2023. ii.That this Court do admit the draft Memorandum of Appeal out of time and the same be deemed as duly filed upon payment of requisite court fees.
2. The process of Appeal is underpinned by statutes, Rules and Procedures. A party is bound to play within the set out procedures, rules and practices. It is important to appreciate that a party cannot be allowed to set his own rules and practice and expect to benefit from the same. The first step is the process of undertaking an Appeal is to file a Notice of Appeal within the stipulated period and if not possible to seek leave to file the same out of time. 3. In my view, what the applicant is trying to do is to put the cart before the horse. The applicant’s application is seeking to be allowed to file an appeal out of time, when he did not file a Notice of Appeal or sought an extension within which to file the same out of time. Such a process is an absurdity not known under our Rules, Procedures and Practices. It is an attempt to overturn the set out Rules and Procedures.
4. The application is therefore incompetent and an outright abuse of the court process. It is dismissed with costs to the Respondent. It is so ordered.
DATED AND DELIVERED AT NAKURU THIS 28TH DAY OF MAY, 2024. M. WARSAME.....................JUDGE OF APPEALI certify that this is a True copy of the original.SignedDEPUTY REGISTRAR