Japheth Mutasi Khisa & Stanley Wanyonyi Masinde v Akamba Public Road [2010] KEHC 2191 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

Civil Appeal 54 of 2006

JAPHETH MUTASI KHISA::::::::::::::::APPELLANTS

STANLEYWANYONYI MASINDE

~VRS~

AKAMBA PUBLIC ROAD

SERVICES::::::::::::::::RESPONDENT

RULING

On7/07/2010this appeal came up for hearing of an application dated27/11/2006. The date of the application to appeal out of time had been fixed for14/10/2009before my brother Judge Hon. Justice Msagha Mbogholi on11/02/2009. On the14/10/2009, the application was not heard because service had been effected on the wrong advocate.The court directed that service be effected on Menezes & Co. who were on record for the Respondent and gave the hearing date for the application as7/7/2010.

On7/7/2010the counsels for both parties appeared before me.Mr. Waswa for the Appellant said he had filed a notice of a preliminaryobjection dated15/7/2007which ought to be heard before the Appellant’s application dated27/11/2006. Mr. Olando for the Respondent said he was ready to proceed with the preliminary objection although he had not been served with it.The record revealed that the preliminary objection was served earlier on the firm of Menezes & Co. to which Mr. Olando belongs.However, Mr. Olando argued that hearing the preliminary objection would be an exercise in futility because the appeal has not been admitted.Mr. Waswa also agreed that the appeal has not been admitted.I have now perused at the court record.I confirm that the appeal has not been admitted.I came across a note by my sister Lady Justice Wanjiru Karanja which forms part of the record addressed to the registry.The note confirms that the order for admission made on17/06/2007by the judge was erroneously made due to an oversight on part of the registry.That order was of course invalid because there was an application pending the one dated27/11/2007for leave to appeal out of time.The application has not been prosecuted todate.

For that reason, I agree with Mr. Olando that it would be futile to proceed with the preliminary objection dated15/7/2007before the appeal is admitted.It appears the Appellant is not keen to prosecute the said application filed three years ago.In normal circumstances, it would be expected that the Appellant would be quite enthusiastic to have his application heard in order to have the appeal deemed properly filed in the event that the application is successful.The preliminary objection will not add any value to this intended appeal and will not be heard.The intended Appellant should prosecute his application dated27/11/2007or withdraw it if he has lost interest.

F. N. MUCHEMI

JUDGE

Ruling dated and delivered on the 22nd day of July 2010 in the presence of Mr. Waswa for the Applicant.`

F. N. MUCHEMI

JUDGE