High Court 2492 of 2004

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL APPEAL NO. 56 OF 1997 AHMED KHALIFA…………………………………………….PLAINTIFF =V E R S U S= OMAR ALI HEMED………………………………………RESPONDENT RULING In this application the Applicant is seeking to file a second appeal against the judgment on appeal from subordinate court. Section 72 Civil Procedure Act, Cap.21 provides for second appeals to the Court of Appeal. The grounds upon which such a second appeal may be made are set out therein and numbered (a) – (c) inclusive. Again, Section 79D prohibits any appeals on second appeals on grounds other than those set out under Section 72 aforesaid The Notice of Appeal to the Court of Appeal is filed by the Applicant but it is delayed by one day. This application seeks extension of time. The grounds of this application are set out in the application and also in the Affidavit in Support sworn by Omar Ali Hemed the Applicant. I have perused both documents carefully and although it appears this court had dismissed an application for leave to file an appeal, no ground is set out to satisfy the requirements set out under Section 72 of the Act. This was pointed out by this court in its ruling dated 8/9/2003 . Although the appeal may be as of right, the grounds specified under Section 72 must be complied with. It is therefore necessary for the Applicant to demonstrate that the intended appeal falls under the provisions of the said section either by exhibiting a memorandum of appeal or stating in the application what grounds he relies upon. As it is this court is unable to consider that there is an arguable second appeal at all in order to consider extending time or granting stay sought. For these reasons I find no merit in this application and the same is dismissed with costs. Dated at Mombasa this 19th day of March, 2004. JOYCE KHAMINWA JUDGE Read in presence of :Mr. Khatib and Mr. Munyithia Justus Mr. Munyithia

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