Josphat Kariuki Kamau v Pias Nungari Kamau & another [2006] KECA 258 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL OF KENYA

NAIROBI

Civil Appli 35 of 2006

JOSPHAT KARIUKI KAMAU……………………………....…APPLICANT

AND

1.         PIAS NUNGARI KAMAU……………..………….…….…………1^ST RESPONDENT

2.         ERNEST MWAURA KAMAU……………………………..……..2^ND RESPONDENT

(An application for leave to file notice and record of appeal out of time from the Ruling of the High Court of Kenya at Nairobi (Etyang, J) dated 21^st March, 2000

in

H.C.SUC. C. NO. P&A 1123 of 1989)

*****************

R U L I N G

     The applicant seeks an order under rule 4 of the Rules of this Court for extension of time within which to lodge and serve a Notice of Appeal and a Record of Appeal from the decision of Etyang, J. in Succession Cause No. 1123 of 1989, given on 21^st March, 2000.

     It is apparent that there has been a grave and inordinate delay in lodging the appeal or the application which would have enabled the applicant to file a proper appeal.  The applicant explains this by saying that it was caused by “professional negligence and fault of legal counsel” to pursue the previous pending application – i.e. to put his house in order.  But, the applicant went to sleep for a year and did not take any steps as directed by the learned single Judge of this Court.  The delay is not explained to my satisfaction.

     Also, the record shows that the applicant is complaining against the ruling made on 21^st March 2000 and no Notice of Appeal has been availed to me to show that it was filed within the prescribed time.  The one on record shows that it was filed on 6^th February, 2001 against a ruling made on 1^st February, 2001.  There is no such ruling and the Notice thereto is irrelevant to this application.

     The procrastination in bringing this application is prejudicial to the respondents.  To prolong the dispute by a frivolous appeal, also, is detrimental to the interests of both parties.  The estate has been fully administered according to the Order of Etyang, J and the applicant is collecting rents.

     The inordinate delay involved makes me not exercise my discretion in favour of the applicant.

     I dismiss the application with costs.

DATED and DELIVERED at NAIROBI this 27^th day of April, 2006.

P.K. TUNOI

……………………….

JUDGE OF APPEAL

      I certify that this is

a true copy of the original.

DEPUTY REGISTRAR