Joseph Wafula v Seme Sunguti & Municipal Council of Bungoma [2013] KEHC 5815 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

MISC APPLICATION NO. 104 OF 2012

JOSEPH WAFULA ….................................................................. APPLICANT

VERSUS

SEME SUNGUTI..................................................................1ST RESPONDENT

MUNICIPAL COUNCIL OF BUNGOMA …....................... 2ND RESPONDENT

RULING

The  motion dated 23rd October 2012 is brought under 75,78 and 79 G of the Rules and Order 44 Rule 3 of the Civil Procedure Act and all the other enabling statutes seeking six prayers summarized as  stay, review and or leave to appeal out  of time.

There is a consent recorded between the applicant and the 2nd respondent on 26th April  2013 granting the applicant leave to appeal out of time.  This court  now is tasked to determine the application as between applicant and 1st respondent.

The 1st respondent has  opposed the application mainly on three grounds as captured in their submissions first, the application is incompetent as it is brought under non-existent  orders 75, 78 and 79G of the Civil Procedure  Rules.  Secondly that the application for  review ought  to have been brought before the court   which heard the matter and finally that no application for stay was made before the lower court  as required under Order 22 Rule 22.

In determining   the application for extension of time, what  needs to be considered is the length  and reason for delay, the chances of success of the appeal and the prejudice to be occasioned to the respondent.  The 1st respondent while opposing the application has not told this court  what prejudice he will suffer if the application is allowed.

In terms of  his argument on incompetent, I find it to be on want of  form and not substance.  The applicant instead of quoting section used the words order 75, 78, and 79G.

This omission in my view is curable under article 159 of the  Constitution  and order.................... rule.................... of the Civil Procedure  Rules.

In answer to prayer 3 of the application, I agree with the 1st respondent that this court lacks power to review the orders of the trial court as provided under Order 45.  The prayer is dismissed.

On the issue of stay, Order 22 Rule 22 does not limit a party to apply for stay first before the court  that issued the decree before moving  to a higher court.  It provides “…..................... or to any court having appellate jurisdiction in respect of the decree or execution thereof”.The application for stay is therefore properly before this court.

I also agree with the  1st respondent  that the  applicant has not told this court the reason why he delayed in  not filing his appeal within time. However, because he  sought this in prayer 4 of his application, the court will not close the door on him.  The order to be appealed against is  dated 29. 5.2012 attached.  This court is not happy in the  casual manner in which the applicant has presented this application. There is no annexed draft memo of appeal  for the court  to peruse if it has chances of success.

The court thus grants the applicant leave to appeal out of time for the  ends of justice  to be met given this is a land dispute.

The costs of the application is awarded to the 1st respondent.

RULING DATED, SIGNED, READand delivered in open court this  3rd  day of June   2013.

A. OMOLLO

JUDGE.