[2005] KEHC 2272 (KLR)
The court found that since the appellants had already arranged for the lower court proceedings to be typed and only certification was pending, and considering the High Court vacation period, it was just to extend the time for hearing the appeal. The court emphasized that the appeal process should not be frustrated...
Source-derived case information.
- Citation
- [2005] KEHC 2272 (KLR)
- Parties
- Appellant: The Headmaster Mr. Donald Kahindi, Kiembeni Baptist Primary School; Appellant: Municipal Council of Mombasa; Respondent: The Pastor of Kiembeni (Bamburi) Baptist Church – James Kituku; Respondent: The Secretary of Kiembeni (Bamburi) Baptist Church – Benard Judwa; Respondent: The Treasurer of Kiembeni (Bamburi) Baptist Church – Sacchaeus Munyao; Respondent: The Chairman, Church Council Kiembeni (Bamburi) Baptist Church – Gerald Nyambu
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 103 of 2002
- Procedural Posture
- Civil Appeal / Application for Extension of Time to Hear Appeal and Stay of Execution
- Outcome
- Application for extension of time granted.
- Legal Topics
- Stay of Execution, Extension of Time, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Headmaster Mr. Donald Kahindi, Kiembeni Baptist Primary School
Appellant
Municipal Council of Mombasa
Appellant
The Pastor of Kiembeni (Bamburi) Baptist Church – James Kituku
Respondent
The Secretary of Kiembeni (Bamburi) Baptist Church – Benard Judwa
Respondent
The Treasurer of Kiembeni (Bamburi) Baptist Church – Sacchaeus Munyao
Respondent
The Chairman, Church Council Kiembeni (Bamburi) Baptist Church – Gerald Nyambu
Respondent
Procedural Posture
Civil Appeal / Application for Extension of Time to Hear Appeal and Stay of Execution
Legal Issues
- 1 Whether the appellants should be granted an extension of time to have their appeal heard and determined.
- 2 Whether the stay of execution of the lower court's injunction order should be extended.
Ratio Decidendi
The court found that since the appellants had already arranged for the lower court proceedings to be typed and only certification was pending, and considering the High Court vacation period, it was just to extend the time for hearing the appeal. The court emphasized that the appeal process should not be frustrated by procedural delays outside the appellants' control, and that justice required the extension to avoid rendering the appeal nugatory.
Court Disposition
Application for extension of time granted.
Orders
- The period for hearing the appeal is extended up to 31st August 2005.
- Costs of the application shall be costs in the appeal.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA Civil Appeal 103 of 2004
THE HEADMASTER MR. DONALD KAHINDI KIEMBENI BAPTIST PRIMARY SCHOOL
MUNICIPAL COUNCIL OF MOMBASA …………….APPELLANTS
- Versus -
THE PASTOR OF KIEMBENI (BAMBURI) BAPTIST CHURCH – JAMES KITUKU
THE SECRETARY OF KIEMBENI (BAMBURI) BAPTIST CHURCH – BENARD JUDWA
THE TREASURER OF KIEMBENI (BAMBURI) BAPTIST CHURCH – SACCHAEUS MUNYAO
THE CHAIRMAN, CHURCH COUNCIL KIEMBENI (BAMBURI) BAPTIST CHURCH – GERALD NYAMBU …….. RESPONDENTS
R U L I N G On 1st March 2005 this court, on the Appellants’ application, granted a stay of execution of the Senior Resident Magistrate’s order of injunction issued in Mombasa CMCC No. 5465 of 2003 on 24th September 2004 for three months by which time the Appellants were to have had their appeal heard and determined. The appeal has not been heard. On 31st May 2005 the Appellants came back to court seeking, under sections 3A and 95 of the Civil Procedure Act and Order 49 Rule 5 of the Civil Procedure Rules, an extension of time to have the appeal heard.
The reason they gave for seeking an extension is that the lower court proceedings which they have had typed in their advocates’ offices have not been certified to facilitate the hearing of the appeal. Their advocate Mr. Mutubia submitted that if the extension is not granted the status quo will be changed radically and the appeal will be rendered nugatory.
Opposing the application Mr. Gikandi for the Respondents submitted that the application for extension of time being made on the last day of the three months period allowed has not been brought in good faith and that it is yet another attempt by the Appellants to delay this matter. He further submitted that if the application is refused the pupils will not suffer as the Respondents are ready with teachers to run the school.
I have considered the application. An appeal cannot be heard without the lower court proceedings. The Appellants have caused them to be typed in their Advocates’ office and they are pending certification by court. In the circumstances and because of the High Court vacation in the first part of August, I extend the period upto the 31st August 2005.
Costs of the application shall be costs in the appeal.
DATED and delivered this 14th day of June 2005.
D.K. MARAGA JUDGE