Mohammed Abdulrehman Mohamed Hatimy v Kalidas Kanji (Africa) Limited & Kalidas Kanji & Company Ltd [2000] KECA 65 (KLR)

IN THE COURT OF APPEAL

AT MOMBASA

(CORAM: KWACH, J.A. (IN CHAMBERS)

CIVIL APPLICATION NO. NAI. 244 OF 1999

BETWEEN

MOHAMMED ABDULREHMAN MOHAMED HATIMY ....................APPLICANT

AND

1. KALIDAS KANJI (AFRICA) LIMITED

2. KALIDAS KANJI & COMPANY LTD.,,,,,,,,,,,,,....................RESPONDENTS

(An application for extension of time for filing and serving a notice of Appeal from a Judgment and Decree of the High Court of Kenya at Mombasa (Lady Justice Ang'awa) dated 15th February, 1996

in

H.C.C.C. NO. 29 OF 1994)  ***********

R U L I N G

This is an application under rules 4 and 83 of the Rules of this Court for extension of time to lodge a notice of appeal and file a record of appeal and to be allowed to institute the appeal as the legal representative of the deceased. The decision against which the applicant, Mohamed Adbulrehman Mohamed Hatimy (the applicant), wishes to appeal was given by Ang'awa J on 15th February, 1996. An appeal from that decision was filed by one Sheikh Abdulrehman Mohamed Hatimy, now dead, namelyCivil Appeal No. 18 of 1998. This appeal was struck out as incompetent by this Court on 21st July, 1999. On 16th August, 1999 the applicant took out this Notice of Motion seeking the orders for extension of time and a further order that he be allowed to institute the intended appealinhis name as the legal representative of the deceased.

The supporting affidavit was sworn by Mr. Ushwin Khanna, who appears for the applicant, and in paragraph 9 of his affidavit he deponed -

"(9)That the applicant is one of the beneficiaries and the legal representative of the estate of the late Sheikh Abdulrehman Mohamed Hatimy, the aforesaid first defendant."

Mr. Khanna did not explain to me why he swore the affidavit on behalf of the applicant in which he swore to matters in respect of which he clearly has no direct knowledge and upon which he cannot be cross-examined. See David Kinyanjui & Others v Meshack Omari Monyoro (Civil Appeal No. 121 of 1993) (unreported). Nor did Mr. Khanna place before me any evidence to support the applicant's claim to be the legal representative of the estate of the deceased. He conceded that no application for grant of representation has been made by the applicant or anyone else. I am accordingly of the opinion that the applicant has no locus standi to bring this application and is just a busybody. On this ground alone the application must fail and it is accordingly dismissed with costs.

Dated and delivered at Mombasa this 27th day of January, 2000.

R. O. KWACH

..................

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR.