Aboud & 18 others v Khan [2021] KECA 121 (KLR)

Aboud & 18 others v Khan (Civil Appeal (Application) 20 of 2020) [2021] KECA 121 (KLR) (5 November 2021) (Ruling)

Neutral citation number: [2021] KECA 121 (KLR)

Republic of Kenya

In the Court of Appeal at Malindi

Civil Appeal (Application) 20 of 2020

SG Kairu, JA

November 5, 2021

Between

Ali Didi Aboud

1st Applicant

Watamu Worship Center (G.O.C

2nd Applicant

Athman Shaibu Shoshi

3rd Applicant

A.O. Athman

4th Applicant

Mulki Hassan

5th Applicant

Mohamed Heri

6th Applicant

Mwanaisha Mohamed

7th Applicant

Omar Fundi

8th Applicant

Hassan Abdullah

9th Applicant

Jackline Mwania

10th Applicant

Annastacia Kahama

11th Applicant

Hildagad Gashamba

12th Applicant

Joicye Nyokabi

13th Applicant

Bwana Fae Ustahidi

14th Applicant

Emmanuel Charo Tinga

15th Applicant

Helen Murungi

16th Applicant

Helen Makeba

17th Applicant

Saidi Bwana

18th Applicant

Baraka Kaberia

19th Applicant

and

Mohamed Sadeeeque Khan

Respondent

(An application for extension of time to file and serve a record of appeal out of time against the Judgment/Decree of the Environment & Land Court at Malindi (Olola, J.) delivered on 18th September 2020 in ELC Petition No. 7 of 2013)

Ruling

1. By application dated 21st December 2020, the applicants seek orders for extension of time for lodging and service of a record of appeal from the judgment of the Environment and Land Court in ELC Petition No. 7 of 2013 between the parties hereto.

2. As stated by the Supreme Court in Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others, Supreme Court Application No. 16 of 2014 [2014] eKLRextension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court; that the party seeking extension of time has the burden to lay a basis to the satisfaction of the court; that extension of time is a consideration on a case to case basis; that delay should be explained to the satisfaction of the court; whether there will be prejudice suffered by the respondents if the extension is granted; and whether the application is brought without undue delay.

3. In his affidavit in support of the application, Athman Shaibu Shossi the 3rd applicant deposes that following the impugned judgment on 18th September 2020, the applicants’ advocates promptly applied for a copy of proceedings and filed a notice of appeal on 25th September 2020 and on 29th September 2020 respectively; that the typed proceedings were supplied on 4th December 2020 and a certificate of delay issued on that date; that the record of appeal, being Civil Appeal No. E021 of 2021 was filed alongside the present application. The applicants pray that the record of appeal be deemed as properly filed.

4. The certificate of delay exhibited appears incomplete and is not helpful at all as there is no indication therein the period that was required for the preparation of the proceedings and neither does it certify when the proceedings were supplied to the applicant’s counsel. It is perhaps the defect in the certificate of delay that necessitated this application, which would have been unnecessary with a proper certificate of delay having regard to the proviso to Rule 82 of the Court of Appeal Rules.

5. In any event, I allow the application in terms of prayers 2, 3 and 4 of the application. The applicant shall serve the record of appeal on the respondent with 7 days of delivery of this ruling. Costs of the application shall be in the appeal.

Dated and delivered at Mombasa this 5th day of November, 2021. S. GATEMBU KAIRU, FCIArb....................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR