Case ID:175870
Parties: None
Date Delivered: None
Case Type: None
Court: None
Judges: None
Citation: None
Mburu Bashir v Billy Lubanga Namayi [2021] eKLR
Case Metadata
Case Number:
Civil Appeal 646 of 2016
Parties:
Mburu Bashir v Billy Lubanga Namayi
Date Delivered:
27 May 2021
Case Class:
Civil
Court:
High Court at Nairobi (Milimani Law Courts)
Case Action:
Ruling
Judge(s):
Amraphael Mbogholi-Msagha
Citation:
Mburu Bashir v Billy Lubanga Namayi [2021] eKLR
Advocates:
Mr. Gitari h/b for Mr. Mbigi for the appellant
Ms. Muteti for the respondent.
Case History:
Being an Appeal from the Judgment of the Chief Magistrate’s Case no. 2183 of 2014 delivered on 5th October, 2019
Court Division:
Civil
County:
Nairobi
Advocates:
Mr. Gitari h/b for Mr. Mbigi for the appellant
Ms. Muteti for the respondent.
History Advocates:
Both Parties Represented
History County:
Nairobi
Case Outcome:
Application 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
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 646 OF 2016
MBURU BASHIR ............................APPELLANT
VERSUS
BILLY LUBANGA NAMAYI .....RESPONDENT
(Being an Appeal from the Judgment of the Chief Magistrate’s Case no. 2183 of 2014 delivered on 5
th
October, 2019)
RULING
On 30
th
January, 2020 Kamau J delivered a ruling relating to an application dated 20
th
March, 2019 which sought the dismissal of the Memorandum of Appeal in this matter for want of prosecution, that the money held in the joint fixed deposit account in the names of advocates, be released to the advocate for the respondent, and that the appellant do comply with the orders of the lower court relating to costs.
The application was dismissed but the Judge ordered that the record of appeal be served within 90 days from the date of that ruling, failure of which would lead to automatic dismissal of the appeal and release of the decretal sum as prayed.
The judge also ordered that the Deputy Registrar do facilitate the typing of the judgment and proceedings and placing of the lower court file within 60 days from the date of the ruling. Those conditions were not met and so the appeal stood dismissed at the expiration of the timelines set.
There is now before me an application dated 12
th
February, 2021 seeking to reinstate the appeal and list the same for directions, and that the court grants leave to extend the time limited for filing the record of appeal.
The application is supported by grounds set out on its face, and a supporting affidavit sworn by the advocate for the appellant. There is a replying affidavit sworn by the advocate for the respondent opposing the application.
In the grounds set out by the appellant, it is stated that the lower court proceedings were obtained in January, 2021 and that, the appellant cannot be blamed as the processing of those proceedings was not within his control. It was also not possible to comply with the time lines set by the court because the appellant was frustrated by the emergence of Covid 19, which altered all the operations of the court and other business.
I have read the affidavit in reply and noted the concern of the respondent in this matter. With respect, I agree that the onset of Covid 19 pandemic destabilised many operations including the court process. Further, it was the Deputy Registrar of this court who was to facilitate the availability of the proceedings and there is no evidence that any compliance was met in that regard. The appellant must have been a victim of the systemic challenges that have affected the administration of justice in our courts.
I am not persuaded that I should dismiss the application and therefore, this appeal having been dismissed by operation of timelines set by Kamau J, I hereby order that the same is now reinstated unconditionally. Leave is now extended for the filing of the record of appeal, which I note has already been lodged, and shall be deemed to be filed within 14 days from today on payment of the requisite filing fees.
The Deputy Registrar of this court shall now call for the original lower court file within the next 30 days so that the appeal is admitted for hearing and directions given. The costs shall abide by the decision of the appeal.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 27
TH
DAY OF MAY, 2021
A. MBOGHOLI MSAGHA
JUDGE
In the presence of:
Mr. Gitari h/b for Mr. Mbigi for the appellant
Ms. Muteti for the respondent.