[2024] KECA 1737 (KLR)
The court found that the delay in filing the reference to the full bench was inordinate, being over one year. However, given the applicant's advanced age and the explanation that the delay was due to counsel's failure to communicate the outcome of the previous application, the court exercised its discretion to grant...
Source-derived case information.
- Citation
- [2024] KECA 1737 (KLR)
- Parties
- Applicant: Mutuku Ngei; Respondent: Julius Makenzi Mwatu (Suing as the Legal Representatives and on Behalf of the Estate of Mwatu Mutune alias Mwatu Waita Nguyo); Respondent: Robert Mutyango Musau
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application E155 of 2022
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time and Reference to Full Bench
- Outcome
- Application partially allowed.
- Judges
- W Karanja
- Legal Topics
- Extension of Time, Reference to Full Bench, Residual Jurisdiction, Appeal Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mutuku Ngei
Applicant
Julius Makenzi Mwatu (Suing as the Legal Representatives and on Behalf of the Estate of Mwatu Mutune alias Mwatu Waita Nguyo)
Respondent
Robert Mutyango Musau
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time and Reference to Full Bench
Legal Issues
- 1 Whether the applicant should be granted extension of time to file a reference to the full bench out of time.
- 2 Whether a single Judge has jurisdiction to set aside the ruling of another single Judge declining extension of time to appeal.
Ratio Decidendi
The court found that the delay in filing the reference to the full bench was inordinate, being over one year. However, given the applicant's advanced age and the explanation that the delay was due to counsel's failure to communicate the outcome of the previous application, the court exercised its discretion to grant the applicant seven days from the date of the ruling to file a formal request for reference to the full bench. The court declined the prayer to set aside the previous ruling, holding that a single Judge lacks jurisdiction to do so. The application was therefore partially allowed to the extent of permitting the late filing of the reference, but all other prayers were declined.
Court Disposition
Application partially allowed.
Orders
- The applicant is granted seven (7) days from the date of the ruling to file a formal request for reference to the full bench pursuant to rule 57(b) of the Court of Appeal Rules.
- The prayer to set aside the ruling of the single Judge is declined for want of jurisdiction.
Full Case Text
Judgment text and source record
23 paragraphs
Ngei v Mwatu (Suing as the Legal Representatives and on Behalf of the Estate of Mwatu Mutune alias Mwatu Waita Nguyo) & another (Civil Application E155 of 2022) [2024] KECA 1737 (KLR) (6 December 2024) (Ruling)
Neutral citation: [2024] KECA 1737 (KLR)
Republic of Kenya
In the Court of Appeal at Nairobi
Civil Application E155 of 2022
W Karanja, JA
December 6, 2024
Between
Mutuku Ngei
Applicant
and
Julius Makenzi Mwatu (Suing as the Legal Representatives and on Behalf of the Estate of Mwatu Mutune alias Mwatu Waita Nguyo)
1st Respondent
Robert Mutyango Musau
2nd Respondent
Ruling
1. The notice of motion dated 1st March 2024 was listed for hearing before me this morning. The applicant seeks two (2) orders: that the time for filing a request for reference to full bench be extended and the request dated 22nd February 2024 be deemed as filed within time; and that the Court exercises its residual jurisdiction to do substantive justice and set aside the Ruling of a single Judge dated 3rd February 2023 and allow the application to file an appeal out of time.
2. I have considered the application, the grounds it is predicated on, the depositions contained in the supporting affidavit and the submission by the applicant dated 28th November 2024.
3. {{}}The Ruling of the single Judge (Okwengu, J.) was delivered on 3rd February 2023 and the request for reference was filed on 22nd February 2024 which is slightly over 1 year later. I note that this delay is inordinate. The explanation given for the delay is that counsel on record failed to communicate to the applicant the outcome of his application in good time.
4. It is stated that the applicant is 90 years old, and is anxious to pursue his intended appeal. It is only for that reason that I will indulge the applicant and grant him seven (7) days from the date of this Ruling to move the court by way of formal request that the application for extension of time to file the appeal out of time be heard by a full bench pursuant to rule 57(b) of the Court of appeal Rules. The said application will then be heard and determined on its merit.
5. The second prayer is declined as this Court, sitting as a single Judge has no jurisdiction to set aside the Ruling of the single Judge that declined to extend time to file an appeal out of time.
6. There will be no order on costs as the application is not opposed.
DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF DECEMBER, 2024. W. KARANJAI certify that this is a the true copy of the original.SignedDEPUTY REGISTRAR………………..……….…….JUDGE OF APPEAL