[2001] KECA 330 (KLR)
The Court found that since the Baptismal card and Passbook, which are primary documents required for the Record of Appeal, could not be traced despite the applicant's due diligence, it would be futile to delay hearing the application. The urgency was justified because the appeal could be deemed withdrawn if not...
Source-derived case information.
- Citation
- [2001] KECA 330 (KLR)
- Parties
- Applicant: Peter Kamau Njuguna; Respondent: Stephen Magichu; Respondent: Joseph Warari; Respondent: Julius Njoroge; Respondent: Francis Magichu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 115 of 2001
- Procedural Posture
- Civil Application / Application for Certification of Urgency and Extension of Time
- Outcome
- Application certified as urgent; costs to abide outcome of intended appeal.
- Judges
- EO O'Kubasu
- Legal Topics
- Extension of Time, Record of Appeal Requirements, Missing Primary Documents, Urgency Certification, Succession Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kamau Njuguna
Applicant
Stephen Magichu
Respondent
Joseph Warari
Respondent
Julius Njoroge
Respondent
Francis Magichu
Respondent
Procedural Posture
Civil Application / Application for Certification of Urgency and Extension of Time
Legal Issues
- 1 Whether the applicant's Notice of Motion should be certified as urgent in light of missing primary documents required for the Record of Appeal.
- 2 Whether the Court should extend time for instituting and serving the Record of Appeal despite the omission of the Baptismal card and Passbook.
Ratio Decidendi
The Court found that since the Baptismal card and Passbook, which are primary documents required for the Record of Appeal, could not be traced despite the applicant's due diligence, it would be futile to delay hearing the application. The urgency was justified because the appeal could be deemed withdrawn if not lodged within the prescribed time. Therefore, the Court certified the applicant's Notice of Motion as urgent, allowing the application for extension of time and related reliefs to be heard expeditiously.
Court Disposition
Application certified as urgent; costs to abide outcome of intended appeal.
Orders
- The applicant's Notice of Motion is certified as urgent.
- Costs of this application will abide the outcome of the intended appeal.
Full Case Text
Judgment text and source record
32 paragraphs
IN THE COURT OF APPEAL AT NAIROBI (CORAM: O'KUBASU, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 115 OF 2001
BETWEEN
PETER KAMAU NJUGUNA ................................ APPLICANT
AND
1. STEPHEN MAGICHU
2. JOSEPH WARARI
3. JULIUS NJOROGE
4. FRANCIS MAGICHU .................................. RESPONDENTS
(An application for extension of time to file and serve the Record of Appeal from the Judgment of the High Court of Kenya at Nairobi (Lady Justice Ang'awa) dated 3rd December, 1998
in
SUCCESSION CAUSE NO. 1014 OF 1993) *************
R U L I N G
This matter is placed before me pursuant to Rule 47(5) of the Court of Appeal Rules for hearing inter partes on the issue of urgency since I had declined to certify the same as urgent. I have now heard counsel for both sides. The Notice of Motion which the applicant wishes to be certified urgent is seeking the following orders:
"1. ...
2. That this Court under its inherent power do call for the Court file in the Superior Court in H .C. Succession Cause No. 1014 of 1993 for the purpose of dispensing with attachment of copies of the Baptismal Card and Passbook as primary documents in the Applicant's Record of Appeal.
3. That this Court do dispense with the attachment of the Baptismal card and the Passbook as primary documents in the Applicant's Record of Appeal.
4. That this Honourable Court may be pleased to order that the Record of Appeal filed by the Applicant contemporaneously with this application be deemed to be duly lodged and competent without the Baptismal card and the Passbook.
5. That the time for instituting the Appeal be extended.
6. Time for service of the Memorandum of Appeal and Record of Appeal be extended."
That Notice of Motion will be based on the following grounds:
"(i)The Applicant's previous appeal to wit, Court of appeal Civil Appeal No. 34 of 2000 was on 16 -01-2001 struck out on the ground that the Record of Appeal omitted primary documents.
(ii)That after due diligence to retrieve the primary documents f rom the Superior Court it has cometo the Applicant's notice that two of the primary documents namely, the Baptismal Card and the Passbook cannot be traced from the Superior Court Record by the Court Registry Officials.
(iii)That the Applicant is unab le to include in the Record of Appeal the two missing primary documents namely the Baptismal card and the Passbook.
(iv)That if the Appeal is not lodged and/or instituted within the time ordered by the court, the Appellant shall be deemed to have withdra wn the Notice of Appeal and the Appeal as a whole.
(v)The applicant's appeal raises serious and substantial issues of law and in particular whether in the circumstances of the case trust arose so as to defeat the title of the Applicant to land title No. Githunguri/Ikinu/ 320. "
In view of the fact that two documents mentioned (Baptismal card and Passbook) cannot be traced then it would appear that the applicant's Notice of Motion should be dealt with quickly otherwise it would be an exercise in futility to entertain the application after the requisite period has expired. For that reason I am now certified that there is urgency in the matter. I therefore certify the applicant's Notice of Motion as urgent. Costs of this application will abide the outcome of the intended appeal.
Dated and delivered at Nairobi this 4th day of May, 2001.
E. O. O'KUBASU
...................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.