Kenya National Highways Authority v Weighbridge & 2 others [2024] KECA 704 (KLR)

Kenya National Highways Authority v Weighbridge & 2 others (Civil Application E010 of 2024) [2024] KECA 704 (KLR) (21 June 2024) (Ruling)

Neutral citation: [2024] KECA 704 (KLR)

Republic of Kenya

In the Court of Appeal at Kisumu

Civil Application E010 of 2024

HA Omondi, JA

June 21, 2024

Between

Kenya National Highways Authority

Applicant

and

Officer in Charge Busia Weighbridge

1st Respondent

Thelmax Contarctors Limited

2nd Respondent

Director of Public Prosecutions

3rd Respondent

(An application for extension of time to file an appeal out of time from the judgment of the High Court at Kakamega, (W. Musyoka, J.) dated 8th July 2022 in Misc. Criminal Application No. 58 of 2015)

Ruling

1. The application dated 23rd January 2024 brought pursuant to rule 4 and rule 5(2)(b) of the Court of Appeal Rules; seeks that the Notice of Appeal filed on 20th August 2022, be deemed as properly filed; extension of time within which to file an appeal against the judgment of Musyoka, J, in Kakamega Misc. Criminal Application No. 58 of 2015; delivered on 8th July 2022 out of time; an order for stay of proceedings in Kakamega Misc. Criminal Application No. 58 of 2015, pending hearing and determination of the appeal; and that costs be provided. The affidavit in support of the application of even date is sworn by the applicant’s Corporation Secretary, Norah. A. Odingo.

2. The Thelmax (the 1st respondent) had filed a Notice of Motion against the applicant, the 2nd and 3rd respondents to release number plates, registration mark and number for its motor vehicle make Mitsubishi Fuso; and to prohibit the prosecution of its driver, on allegations of excess load; and compensation. The judgment was delivered on 8th July 2022 in favor of the 1st respondent awarding it general damages of Kshs.3,000,000/-, and special damages of Kshs.5,000,000/-.

3. The applicant was not aware of the judgment as the trial judge went on transfer; and the pending rulings were not delivered on the dates allocated; it was not until 20th August 2022 that it became aware of the decision; and being aggrieved lodged a Notice of Appeal on the same date. The applicant, requested for typed copies of proceedings; then filed an application for stay, which was dismissed on the ground that the applicant being a government agency, the applicable law in filing the appeal was the Government Proceedings Act.

4. The applicant, on the issue of admission of the Notice of Appeal in court record filed an application dated 27th September 2022, however the said issue was not addressed by the court in its ruling; as such the notice of appeal is still not properly on record; and the applicant was unable to file its appeal owing to the fact that the notice of appeal filed was not properly on record; and as such there is need to have the same regularized.

5. There is a mishmash in this matter in the sense that whilst the application moves this court under Rule 4 of the Court’s Rules, for purposes of extending time within which to file a notice of appeal, the applicant is also seeking orders which can only be dealt with by a full bench under Rule 5(2)(b). It would be rather messy for this court, sitting as a single judge bench, to partially deal with the prayers sought within its ambit, then leave out the other prayers for a full bench to deal with. It may serve the applicant well to consider the provisions of Rule 55 which provides that:55. (1)Each application, other than an application specified in sub-rule (2), shall be heard by a single judge: Provided that such application may be adjourned by the judge for determination by the Court.2. This rule shall not apply to:a.an application for leave to appeal;b.an application for a stay of execution, injunction, or stay of further proceedings;c.an application to strike out a notice of appeal or an appeal; ord.an application made as ancillary to an application under paragraph (a) or (b) or made informally in the course of a hearing.

6. I decline to grant the prayers sought in the application; due to its incompetence; and direct that the applicant files separate appropriate applications. Costs to the respondent.

DATED AND DELIVERED AT KISUMU THIS 21ST DAY OF JUNE 2024. H. A. OMONDI…………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR