Baobab Beach Resort Mombasa Ltd t/a Baobab Beach Resort v Waihenya [2021] KECA 277 (KLR)

Baobab Beach Resort Mombasa Ltd t/a Baobab Beach Resort v Waihenya (Civil Application 37 of 2020) [2021] KECA 277 (KLR) (3 December 2021) (Ruling)

Neutral citation number: [2021] KECA 277 (KLR)

Republic of Kenya

In the Court of Appeal at Malindi

Civil Application 37 of 2020

JW Lessit, JA

December 3, 2021

Between

Baobab Beach Resort Mombasa Ltd t/a Baobab Beach Resort

Applicant

and

Michael Waihenya

Respondent

(An application for extension of time to file and serve the Notice of Appeal, out of time in an intended Appeal from the judgement of the High Court of Kenya at Mombasa (P.J Otieno) delivered on the 8th day of May 2020 in HCC Case No. 267 of 2005)

Ruling

1. The application before me for hearing is dated 29th May, 2020. It is brought under Articles 48 & 159 (2) (d) of the Constitution, Section 3A & 3B of the Appellate Jurisdiction Act, Cap 9 & Rules 1 (2), 4, 41 and 42 (1) of the Court of Appeal Rules, 2010. It seeks the following 3 orders:1. That this Honourable Court be pleased to grant an extension of time for the lodging and service of a Notice of appeal against the judgement and Decree of the Honourable Justice P.J Otieno delivered on the 8th day of May 2020 in Mombasa High Court Civil Suit No. 267 of 2005 between Michael Waihenya v Baobab Beach Resort Mombasa Limited t/a Baobab Beach Resort.2. That the Applicant’s Notice of Appeal lodged on 26th May 2020 and served on intended Respondents be deemed to have been filed within time and to be properly on record.3. That the costs of this Application do abide the outcome of the intended appeal.

2. When the application came up for hearing through filed submissions, a Notice of Withdrawal was served upon the court. It is dated 14th October, 2021. It gives notice that the Applicant in this case has withdrawn its Notice of Motion dated 29th May 2020 with no order as to costs. I noted that the case number in the notice is Civil Application No. E037 of 2021, while the instant case is Civil Application No. 37 of 2020. The parties and their advocates as per the Notice and the case file are the same, and so is the date and nature of the application being withdrawn. I will take it that the error on the year the case was filed as per the Notice is a typographical error.

3. Accordingly, I mark the Notice of Motion application dated 28th May 2020 withdrawn under Rule 96 of the Court of Appeal Rules with no orders as to costs.

DATED AND DELIVERED AT MOMBASA THIS 3RD DAY OF DECEMBER, 2021. J. LESIIT…………………….……..JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR