[2006] KECA 282 (KLR)
The court found that the application for extension of time was fundamentally defective due to multiple procedural and substantive omissions. The affidavit in support was sworn by a person who had not established authority to act for the estate of the deceased applicant, and there was no explanation for the delay or...
Source-derived case information.
- Citation
- [2006] KECA 282 (KLR)
- Parties
- Applicant: Richard Apela; Applicant: Penina Odeny Apela; Respondent: Emmanuel Ngeso Nyaoke
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 335 of 2004
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time to File and Serve Notice and Record of Appeal Out of Time
- Outcome
- application dismissed with costs to be borne personally by the applicants' advocates
- Judges
- J Wakiaga
- Legal Topics
- Extension of Time, Appeal Process, Res Judicata, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Apela
Applicant
Penina Odeny Apela
Applicant
Emmanuel Ngeso Nyaoke
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time to File and Serve Notice and Record of Appeal Out of Time
Legal Issues
- 1 Whether the applicants have provided sufficient grounds for extension of time to file and serve notice and record of appeal out of time.
- 2 Whether the application is res judicata and constitutes an abuse of the court process.
- 3 Whether the advocates for the applicants should personally bear the costs for non-disclosure of material facts.
Ratio Decidendi
The court found that the application for extension of time was fundamentally defective due to multiple procedural and substantive omissions. The affidavit in support was sworn by a person who had not established authority to act for the estate of the deceased applicant, and there was no explanation for the delay or for the status of the second applicant. Critically, the applicants failed to disclose that an identical application had previously been made and dismissed by the Court, rendering the current application res judicata and an abuse of the court process. The court held that such non-disclosure and lack of candour justified not only the dismissal of the application but also the...
Court Disposition
application dismissed with costs to be borne personally by the applicants' advocates
Orders
- The application for extension of time is dismissed.
- The advocates on record for the applicants shall personally bear the costs of the application assessed at Ksh.10,000, to be paid within 30 days of the date of this ruling.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT KISUMU CIVIL APPLICATION 335 OF 2004
1. RICHARD APELA )
2. PENINA ODENY APELA ) ……………………..............…….. APPLICANTS
AND
EMMANUEL NGESO NYAOKE ........................RESPONDENT
(Application for extension of time to file and serve notice and record of appeal out of time in an intended appeal from a judgment of the High Court of Kenya at Kisumu (Birech, Comm. of Assize) dated 29th June, 2000
in
H.C.C.C No. 18 of 1998)
********************
R U L I N G
The application made before me in this matter is hopeless and unsalvageable. It is a notice of motion filed on 15. 12. 04 ostensibly by two applicants, Richard Apela and Penina Odeny Apela. But the affidavit in support of the application is sworn by one Albert Apela who says he is the applicant! He also says his father, Richard Apela, was the plaintiff in the superior court but he died on 26. 03. 01. Nothing is said about the second applicant, Penina Odeny Apela.
Other than the mystery about the parties, the application seeks extension of time to file an appeal against the judgment of the superior court delivered on 29. 06. 00. That was more than 9 months before the death of Richard Apela. An undated and unsigned notice of appeal is exhibited and I am told it was filed on 13. 02. 01. Nothing is said about service of the notice of appeal in the affidavit in support. There is also an undated and unsigned certificate of delay exhibited with the application. It shows that certified copies of proceedings and judgment were applied for on 28. 08. 00 which was two months after the judgment complained about, and that they were received by the applicants’ advocates on 27. 10. 00. That was more than 5 months before the death of Richard Apela. Nothing is said about that delay in the affidavit in support. There is nothing exhibited with the application either, to show that the deponent of the supporting affidavit has authority to speak on behalf of the estate of Richard Apela or that he was substituted in the proceedings as a party.
To crown all the mystery and comedy of omissions, there is non-disclosure of the material fact that the same application for extension of time was made before this Court on 03. 10. 00 and was dismissed by Lakha, J.A on 20. 03. 01 during the lifetime of Richard Apela. The affidavit sworn in support of that application had given totally different reasons for seeking extension but they were rejected by Lakha, J.A who found the delay occasioned was inordinate.A reference made to the full Court was subsequently withdrawn. That information was disclosed in a replying affidavit filed in this matter by the respondent’s counsel, Mr. Mwamu, who submitted that the application now made is not only res judicata, and therefore an abuse of the court process, but also prays that the advocates who filed the application be condemned to bear the costs of the application personally.
This was obviously a difficult application for Mr. Kiriba, learned counsel who held brief for M/S Kamau Kinga & Co. Advocates for the applicants.Mr. Kiriba conceded that the application has been made once before but was dismissed. He had no explanation for the glaring omissions and total lack of explanation for making this application before me. As stated earlier, it was a hopeless application which was made without proper preparation and in flagrant non-disclosure of material facts. It is for dismissal and I so order.
Costs are in my discretion and would follow the event unless there was a contrary order for reasons given. I agree with Mr. Mwamu that the advocates on record ought to have disclosed that the same application had been made and dismissed earlier. There was no explanation for that non-disclosure and indeed that fact was readily conceded when it was raised. It is a clear abuse of the court process. In the event the advocates on record for the applicants shall personally bear the costs of the application assessed at Ksh.10,000/=, to be paid within 30 days of the date of this ruling and in default, execution shall issue against the advocates.
Dated and delivered at Kisumu this 31st day of March, 2006.
P.N. WAKI
………………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR