WILLIAM AUDI ODODA & PAUL WAORE ODODA V. JOHN YIER

RULING

I am satisfied that the main reason why the appeal was not lodged within the prescribed period is because the superior court file went missing immediately after the judgment in Kisumu H.C.C.C. No. 66 OF 1978 was pronounced.

This fact was noted by this Court on 3rd July, 2000 when it ordered the Registrar to make available the original file as well as the skeleton file to the Court by its next sessions which took place on 24th November, 2000. The resultant effect of the missing file was the inability by the applicants to obtain primary and other documents necessary to construct a valid record of appeal.

The delay, therefore, though rather inordinate, cannot be visited upon the applicants. I accept that the copies of the plaint and defence were obtained on 5th October, 2001. Soon thereafter this application was mounted on 30th October, 2001.

The applicants cannot be guilty of laches. They have satisfactorily explained the delay which has bedecked the intended appeal.

The subject matte…