Case ID:169330

Charo Karisa Ngulu v Kihuba Holdings Limited [2020] eKLR

Case Metadata

Case Number:

Mombasa Civil Application 45 of 2020

Parties:

Charo Karisa Ngulu v Kihuba Holdings Limited

Date Delivered:

29 Jan 2020

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Ruling

Judge(s):

Fatuma sichale

Citation:

Charo Karisa Ngulu v Kihuba Holdings Limited [2020] eKLR

Case History:

(Being an application for extension of time to file and serve a notice of appeal and record of appeal against the ruling and orders of the Environment and Land Court at Mombasa (Lady Justice Omollo, J) dated March, 2019

Court Division:

Civil

County:

Nairobi

History Judges:

Anne Abongo Omollo

History County:

Mombasa

Case Outcome:

Motion dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE COURT OF APPEAL

AT NAIROBI

[CORAM: SICHALE, J.A. IN CHAMBERS]

MOMBASA CIVIL APPLICATION NO. 45 OF 2020

BETWEEN

CHARO KARISA NGULU..................................................................................................APPLICANT

AND

KIHUBA HOLDINGS LIMITED..................................................................................

RESPONDENT

(Being an application for extension of time to file and serve a notice of appeal and record of appeal

against the ruling and orders of the Environment and Land Court at Mombasa

(Lady Justice Omollo, J) dated March, 2019

in

ELC No. 171 of 2015)

RULING OF THE COURT

************************

By a Notice of Motion dated

15

th

June, 2020

, the applicant,

Charo Karisa Ngulu

seeks

inter alia

, the following order under

Rule 4

of this Court’s Rules.

“That this Hnourable Court be pleased to extend time for filing and service of the Notice of Appeal and record of Appeal and deem the notice of Appeal lodged on the 25

th

March, 2019 and served on the 26

th

March, 2019 and the record of appeal filed and lodged on the 2

nd

June, 2020 and served on the 4

th

of June, 2020 as properly filed and served”.

The grounds in support of the application as detailed on the face of the motion and in the supporting affidavit of the applicant similarly dated are that: the applicant was dissatisfied with the Court’s decision delivered on

7

th

March, 2019

allowing amendment of pleadings; that he instructed his advocates to lodge a notice of appeal on

25

th

March, 2019

but he faced financial constraints in raising funds for typing of proceedings until

November, 2019

when he was able to instruct his advocates to do so; that having applied for the certified copies of the typed proceedings on

20

th

November, 2019

, it was not until

28

th

May, 2020

that they received the same as well as a certificate of delay; that the delay was due to reasons beyond the applicant’s control including the Covid 19 pandemic and the transfer of the trial judge, and that the intended appeal raises weighty and arguable issues of law with a high probability of success.

In a replying affidavit dated

10

th

October, 2020

, the respondent opposed the motion and stated that the delay of more than a year had not been sufficiently explained; that it had not been served with the letter bespeaking the type proceedings and it would suffer great prejudice if the orders sought were granted.

I have considered the application, the replying affidavit and submissions by counsel. The law on the principles to be considered in an application under

Rule 4

is now well settled. They include the delay, the reason for the delay, whether the intended appeal is arguable and the prejudice to be occasioned to the respondent should the application be allowed. (See

Nicholas Kiptoo Arap Korir Salat vs. The Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR).

In the instant matter, under

Rule 74 (2)

of this Court’s Rules, the applicant

was required to lodge a Notice of Appeal within fourteen (14) days of the ruling.

However they filed their Notice of Appeal on

25

th

March, 2019

, 4 days outside the stipulated period. The applicant applied for typed proceedings on

20

th

November, 2019

, which is after about 240 days. The certificate of delay was issued on

28

th

May, 2020

and according to the applicant, the record of appeal was filed on

4

th

June, 2020

following which, this application was filed on

15

th

June, 2020.

The reason for the delay in filing the Notice of Appeal, applying for typed

proceedings and filing the record of appeal has been attributed to lack of funds.

In

Francis Mwai Karani vs. Robert Mwai Karani [2007] eKLR

, this Court held that:

“Lack of money or impecuniosity on the part of an applicant cannot and has never been accepted as a valid reason for extending time to lodge an appeal. But as has always been said, each case must be looked at on its own facts”.

Firstly, this Court was not told how much money the applicant could not

raise for the typing of proceedings. In my view, this non-disclosure may be indicative of lack of candour.

Secondly, it was not explained how a transfer of a trial judge impacted on

the delay. Thirdly, it is idle to blame the delay on the Covid 19 Pandemic. The ruling intended to be challenged was delivered on

7

th

March, 2019

; a Notice of

Appeal was filed on

25

th

March, 2019

; and that

“…

around November, 2019

…”

the applicant received some funds and he was able to pay for the proceedings. In my view, the period from

7

th

March, 2019

to

November, 2019

when the applicant

applied for proceedings has not been sufficiently explained.

I find no merit in the motion. It is hereby dismissed with costs.

Dated and Delivered at Nairobi this 29

th

day of January, 2020.

F. SICHALE

.....................................

JUDGE OF APPEAL

I certify that this is a true copy of the original.

Signed

DEPUTY REGISTRAR