Tagage Hussein Edema v Hussein Edema Bariso [2020] KECA 393 (KLR)

IN THE COURT OF APPEAL AT NAIROBI [CORAM: SICHALE, JA IN CHAMBERS] CIVIL APPLICATION NO. 119 OF 2019 BETWEEN TAGAGE HUSSEIN EDEMA ………………………………………APPLICANT AND HUSSEIN EDEMA BARISO ……………………………………..RESPONDENT (An application for extension of time to file a Notice of Appeal against the judgment of the High Court of Kenya at Marsabit (Chitembwe, J) dated 19th June, 2019 IN Marsabit Misc. Succession Cause No. 1 of 2018 RULING The applicant, Gagaye Hussein Edema filed a Notice of Motion dated 25th July, 2019. The motion is an omnibus application containing several prayers that cannot be handled by a single judge. I shall however deal with prayer No. 3 in the motion that seeks extension of time to file a Notice of Appeal and “… Consequential Memorandum of Appeal…” against the High Court decision rendered on 19th June, 2019 in Marsabit Miscellaneous Succession No. 1 of 2018. The motion is supported by the affidavit of the applicant sworn on the same day (25th July, 2019). The reason for the delay is attributed to the applicant’s change of advocate from the firm of Messrs Biwott Korir & Co. Advocates to the firm of Ndungu & Co. Advocates. The applicant annexed a letter dated 21st June, 2019 from his previous counsel applying for typed proceedings and a receipt of payment of Ksh 2,000.00 being costs of proceedings and another receipt of Kshs 2,670.00 being further costs for the proceedings. The respondent Hussein Edama Bariso opposed the motion vide an affidavit dated 20th December, 2019 on the basis, inter alia, that the appeal has no chances of success. I have considered the motion, and its supporting affidavit and the respondent’s replying affidavit in opposition to the motion in absence of counsel due to the prevailing circumstances caused by Covid 19 pandemic. In my view,the time lapse from the date of delivery of judgment (19th June, 2019) and the subsequent endeavours by the applicant to obtain proceedings were done without delay. I note that the motion was filed on 25th July, 2019, within a period of 36 days from the date of judgment on 19th June, 2019. This delay cannot be said to be inordinate. It is in view of the above that I grant leave to the applicant to file and serve the Notice of Appeal within seven (7) days of today’s date. Each Party to bear his own costs. Dated and Delivered at Nairobi this 7th Day of August, 2020. F. SICHALE JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR