Jacinta Wanza Makenzi v Agnes Mutinda Kithusi & 4 others [2019] KECA 599 (KLR)

IN THE COURT OF APPEAL AT NAIROBI (CORAM: OUKO, (P), (IN CHAMBERS) CIVIL APPLICATION NO. 240 OF 2017 BETWEEN JACINTA WANZA MAKENZI..................................................APPLICANT AND AGNES MUTINDA KITHUSI.........................................1ST RESPONDENT MARDEN KELLI..............................................................2 ND RESPONDENT KEVIN MUTINDA KELLI..............................................3 RD RESPONDENT SYLVIA MWENDE KELLI..............................................4 TH RESPONDENT PETER MUTINDA MUNYAO.........................................5 TH RESPONDENT (In the matter of extension of time to file a reference to full court against the Ruling and order of the single Judge of the appellate Court at Nairobi (Musinga, JA) dated 27th April, 2018 In Civil Appl. No. 240 of 2017) ********* RULING On 27th April, 2018, Musinga, JA, sitting as a single judge declined to extend time within which the applicant would appeal the decision of the High Court rendered on 6th October, 2014. The applicant then sought, in a motion dated 28 th June, 2018 and pursuant to Rules 4 and 55(1)(b) of the Court of Appeal Rules “leave ....to file a reference to a full court against the ruling and orders delivered on 27 th April, 2018 by Hon. Justice D.K Musinga.....”. When the application came up on 8 th November, 2018, the applicant’s counsel or the applicant were not in attendance despite service with the hearing notice. Kantai, JA, on being moved by the respondents’ counsel dismissed the motion, I suppose under Rule 56 of the Court’s Rules. It is the reinstatement of that motion that ought to have concerned the applicant. Instead the instant motion frog-lips the decision of Kantai, JA and seeks go back to Musinga, JA’s ruling. Ordinarily once a single judge rejects an application for extension of time, under Rule 55 an aggrieved applicant may apply in writing to the Registrar within seven days to place the matter before a full court to varied, discharged or reversed the decision of a single judge. By bringing this application, it is not clear whether the applicant would like me to grant leave to her to “appeal the ruling dated 27th April, 2018 out of time”, as she has averred in her affidavit or to grant leave to have a reference made to a full court in respect of Musinga, JA’s decision. There is no mention at all of the decision of Kantai, JA.

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