[2001] KECA 133 (KLR)
The court found that the applicants failed to provide any explanation for the delay in bringing the application for extension of time to file a notice of appeal. The court further held that the applicants' conduct, in first seeking to set aside the decision in the High Court and, upon failure, seeking to appeal the...
Source-derived case information.
- Citation
- [2001] KECA 133 (KLR)
- Parties
- Applicant: Mariambhai Shabir Hussein Noorbhai; Applicant: Fatmabhai Taibali Abdulhussein Noorbhai; Applicant: Gulamali Gulam Hussein; Applicant: Sheikh; Respondent: Deche Chinyaka
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 203 of ??
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice of Appeal
- Outcome
- application dismissed
- Legal Topics
- Extension of Time, Notice of Appeal, Abuse of Process, Land Disputes Tribunal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mariambhai Shabir Hussein Noorbhai
Applicant
Fatmabhai Taibali Abdulhussein Noorbhai
Applicant
Gulamali Gulam Hussein
Applicant
Sheikh
Applicant
Deche Chinyaka
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicants have provided sufficient reason for the delay in filing the notice of appeal out of time.
- 2 Whether the conduct of the applicants amounts to an abuse of the court process.
- 3 Whether the court should exercise its discretion to grant an extension of time.
Ratio Decidendi
The court found that the applicants failed to provide any explanation for the delay in bringing the application for extension of time to file a notice of appeal. The court further held that the applicants' conduct, in first seeking to set aside the decision in the High Court and, upon failure, seeking to appeal the same decision, amounted to a blatant abuse of the process of the court. The relevant statutory procedure for settling land disputes was clearly set out in Section 8 of the Land Disputes Tribunal Act, 1990, and the applicants did not comply with it. In light of these factors, the court declined to exercise its discretion in favour of the applicants and dismissed the application...
Court Disposition
application dismissed
Orders
- The application for extension of time to file notice of appeal is dismissed.
- Costs awarded to the respondent assessed at KShs. 10,000 to be paid within ten (10) days.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT MOMBASA
(Coram: Kwach, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 203 OF 2000 BETWEEN
1. MARIAMBHAI SHABIR HUSSEIN NOORBHAI 2. FATMABHAI TAIBALI ABDULHUSSEIN NOORBHAI 3. GULAMALI GULAM HUSSEIN 4. SHEIKH.........................APPLICANTS AND DECHE CHINYAKA...........................................RESPONDENT
(An application for extension of time to file Notice of Appeal out of time in an intended appeal from a Ruling and Order of the High Court of Kenya at Mombasa (Hayanga, J.) dated 18th May, 2000 in H.C.C.C. NO. 161 OF 1997) ********************** R U L I N G:
This is an application for extension of time to file a Notice of Appeal against the decision of Hayanga, J. given on 18th May, 2000. Instead of lodging a notice of appeal to challenge that decision, the applicants chose to make an application in the superior court to set it aside on the basis that it was made ex parte. The decision was not made ex parte; what happened was that the Advocate retained by the applicants did not attend court. The application to set aside was dismissed on 17th July, 2000. Having failed to have the decision set aside, the applicants now want to go back and appeal against the decision of 18th May, 2000.
I regard the conduct of the applicants as a blatant abuse of the process of this Court. Section 8 of the Land Disputes Tribunal Act, 1990 sets out in simple and clear language the procedure for settling disputes. Apart from that, the delay in bringing the application has not been explained at all. In the circumstances, I decline to exercise my discretion in favour of the applicants and dismiss this application with costs to the respondent which I assess at KShs. 10,000/- to be paid within ten (10) days and in default execution to issue.
Dated and delivered at Mombasa this 19th day of January, 2001.
R.O. KWACH .............. JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR