REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT MOMBASA
CIVIL APPLICATION NO. OF 2019
ERICA KETA KULUMBA T/A
RISE AND SHINE ACADEMY………………………………….………...…APPLICANT
VERSUS
EZARA MUGERA……………………………………...…………………..RESPONDENT
(Application for leave to extend time for filing/lodging and service of a Notice of Appeal
against the judgement of Honourable Justice P. J. Otieno, delivered on 19th October, 2018 in
Mombasa High Court Civil Appeal No. 54 of 2015
=BETWEEN=
ERICA KETA KULUMBA T/A
RISE AND SHINE ACADEMY……………………………………………APPEALLANT
VERSUS
EZARA MUGERA……………………………………...…………………..RESPONDENT
CERTIFICATE OF URGENCY
We, OMOLLO ONYANGO & COMPANY ADVOCATES hereby CERTIFY that the
Application herein is extremely urgent and ought to be heard on priority basis for the reasons
that the Respondent has already commenced execution against the Applicant and unless this
application is heard and appropriate orders issued, the Respondent may attach, sell, dispose of
or auction the Applicant’s properties thereby occasioning the Applicant substantial loss and
damage.
The Applicant intends to file an Appeal against the High Court Orders which Appeal may be
rendered nugatory if the Application herein is not heard and appropriate Orders granted.
DATED at Mombasa this………….day of………………………………………….2019
OMOLLO ONYANGO & COMPANY
ADVOCATES FOR THE APPLICANT
DRAWN & FILED BY
OMOLLO ONYANGO & COMPANY
ADVOCATES
DANICHA PLAZA, 3RD FLOOR, APT. 304
MOMBASA-MALINDI HIGHWAY
P.O. BOX 54-80109
MTWAPA
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT MOMBASA
CIVIL APPLICATION NO. OF 2019
ERICA KETA KULUMBA T/A
RISE AND SHINE ACADEMY………………………………….………...…APPLICANT
VERSUS
EZARA MUGERA……………………………………...…………………..RESPONDENT
(Application for leave to extend time for filing/lodging and service of a Notice of Appeal
against the judgement of Honourable Justice P. J. Otieno, delivered on 19th October, 2018 in
Mombasa High Court Civil Appeal No. 54 of 2015
=BETWEEN=
ERICA KETA KULUMBA T/A
RISE AND SHINE ACADEMY……………………………………………APPEALLANT
VERSUS
EZARA MUGERA……………………………………...…………………..RESPONDENT
AFFIDAVIT AS TO URGENCY
I, JANE. A. ONYANGO, a resident of Mombasa and of Post Office Box Number 2534-
80100 Mombasa in the Republic of Kenya hereby make oath and state as follows:-
1. THAT I am an Advocate of the High Court of Kenya practicing as such with the firm of
Isaac Onyango & Company Advocates who have the conduct of this case on behalf of the
Applicant and therefore competent to swear this Affidavit.
2. THAT I have instructions by the Applicant to file and prosecute an appeal against the
whole of the judgment of Honourable Justice P. J. Otieno, delivered on 19th October, 2018
and seek urgent orders for leave to file an appeal out of time.
3. THAT it was not until February, 2019 when I was served with a warrant of attachment
dated 18th February, 2019 that I realized that judgment had actually been delivered in our
absence and without any notice served upon us on 19th October, 2018.
4. THAT I immediately sought advise the Applicant’s herein of the judgment and sought
their instructions while at the same time, I filed a Notice of Appeal and requested for typed
and certified copies of proceedings and judgment but the Notice of Appeal, though filed on
November 20, 2015 was not signed by the Deputy Registrar until December 4, 2015 since
the registry kept informing us that the Deputy Registrar was out of station. I now produce
and mark as “JAO 1” copy of the Notice of Appeal together with the court filing fees as
well as our letter dated November 16, 2015 requesting for typed and certified copies of
proceedings and judgment together with court fees paid on the request.
5. THAT since the Respondent’s advocates have already commenced the process of
execution, it will result into substantial loss to the Applicant.
6. THAT what I have deponed to herein is true and correct to the best of my knowledge save
where sources of information and grounds of belief have been disclosed.
SWORN at MOMBASA by the said
JANE. A. ONYANGO ....................................................
this...................day of...............................2019 DEPONENT
BEFORE ME:-
COMMISSIONER OF OATHS
DRAWN & FILED BY:-
OMOLLO ONYANGO & COMPANY
ADVOCATES
DANICHA PLAZA, 3RDFLOOR
APARTMENT 304
P O BOX 54-80109
MTWAPA
TO BE SERVED UPON:-
NJOROGE & KATISYA
ADVOCATES
NSSF BLG, 8TH FLOOR
NKRUMAH ROAD
P.O. BOX 40418-80100
MOMBASA
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT MOMBASA
CIVIL APPLICATION NO. OF 2019
ERICA KETA KULUMBA T/A
RISE AND SHINE ACADEMY………………………………….………...…APPLICANT
VERSUS
EZARA MUGERA……………………………………...…………………..RESPONDENT
(Application for leave to extend time for filing/lodging and service of a Notice of Appeal
against the judgement of Honourable Justice P. J. Otieno, delivered on 19th October, 2018 in
Mombasa High Court Civil Appeal No. 54 of 2015)
=BETWEEN=
ERICA KETA KULUMBA T/A
RISE AND SHINE ACADEMY……………………………………………APPEALLANT
VERSUS
EZARA MUGERA……………………………………...…………………..RESPONDENT
NOTICE OF MOTION
(Under Rules 4, 42 and 47 of the Court of Appeal Rules, Sections 3A and 3B of the Appellate
Jurisdiction Act Chapter 9 Laws of Kenya and Article 159 of the Constitution of Kenya)
LET ALL PARTIES concerned attend the Honourable Court on the…………….. day
of…………… 2019 when the matter may be reached for Hearing of an Application on the
part of the Applicant Counsel for Orders:-
1. THAT the Application herein be certified as urgent and fixed for hearing on priority
basis
2. THAT the Applicant be granted leave to file an Appeal against the Respondent out of
time.
3. THAT the annexed Record of Appeal herein be deemed as duly filed upon payment
of requisite Court fees.
4. THAT cost of this Application be in the cause.
WHICH APPLICATION is grounded on the annexed Affidavit of ERICA KETA
KULUMBA on the following grounds and other to be adduced at the Hearing hereof:-
a) THAT statutory time within which to institute this suit has lapsed.
b) THAT the Applicant was unaware of the date of delivery of the Judgement before
Honourable P. J. Otieno, delivered on 19th October, 2018 as the date was not
communicated to her and she was not informed by her advocates on record in
Civil Appeal 54 of 2015 of the Judgement, nor was she aware it had been
delivered, until she was served with warrants of attachment of immovable
property dated 18th February, 2019
c) THAT the Applicant was not aware that there is time limit within which to file
suit.
DATED at Mombasa this………….day of………………………………………….2019
OMOLLO ONYANGO & COMPANY
ADVOCATES FOR THE APPLICANT
DRAWN & FILED BY:-
OMOLLO ONYANGO & COMPANY
ADVOCATES
DANICHA PLAZA, 3RDFLOOR
APARTMENT 304
P O BOX 54-80109
MTWAPA
TO BE SERVED UPON:-
NJOROGE & KATISYA
ADVOCATES
NSSF BLG, 8TH FLOOR
NKRUMAH ROAD
P.O. BOX 40418-80100
MOMBASA
NB: “If any Party does not appear at the time and place above mentioned such orders will
be made and proceedings taken as the Court may think just and expedient”
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT MOMBASA
CIVIL APPLICATION NO. OF 2019
ERICA KETA KULUMBA T/A
RISE AND SHINE ACADEMY………………………………….………...…APPLICANT
VERSUS
EZARA MUGERA……………………………………...…………………..RESPONDENT
(Application for leave to extend time for filing/lodging and service of a Notice of Appeal
against the judgement of Honourable Justice P. J. Otieno, delivered on 19th October, 2018 in
Mombasa High Court Civil Appeal No. 54 of 2015
=BETWEEN=
ERICA KETA KULUMBA T/A
RISE AND SHINE ACADEMY……………………………………………APPEALLANT
VERSUS
EZARA MUGERA……………………………………...…………………..RESPONDENT
SUPPORTING AFFIDAVIT
I, ERICA KETA KULUMBA, a resident of Mombasa and of P.O. Box 54-80109Mtwapa
within the Republic of Kenya do hereby make oath and state as follows:-
1. THAT I am a female adult of sound mind, and the Applicant herein hence competent
to swear this affidavit.
2. THAT statutory time within which to file an Appeal has lapsed.
3. THAT I was unaware of the date of delivery of the Judgement before Honourable P.
J. Otieno, delivered on 19th October, 2018 as the date was not communicated to me
and I was not informed by my advocates on record in Civil Appeal 54 of 2015 of the
Judgement, nor was I aware it had been delivered, until I was served with warrants of
attachment of immovable property dated 18th February, 2019.
4. THAT I was not aware that there is time limit within which to file suit.
5. THAT I annex herein a copy of the draft Appeal. Annexed and marked EKK 1 is a
copy of the draft Appeal.
6. THAT I now swear this affidavit in support of the Application herein.
7. THAT what is deponed hereinabove is true and correct to the best of my knowledge,
information and belief save where sources which are clearly stated therein.
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT MOMBASA
CIVIL APPEAL NO. OF 2019
ERICA KETA KULUMBA T/A
RISE AND SHINE ACADEMY……………………………………………APPEALLANT
VERSUS
EZARA MUGERA……………………………………...…………………..RESPONDENT
(Being an appeal from the Judgement and Decree of Justice P. J. O. Otieno, delivered on 19th
October, 2018 in Civil Appeal No. 54 of 2015, between Erica Keta Kulumba T/A Rise and
Shine Academy –vs- Ezra Mugera)
RECORD OF APPEAL
I, Jane. A. Onyango seized with the conduct of this Appeal on behalf of the Appellant, do
hereby certify that this record is a true record of the pleadings, notes of the Judge and other
relevant papers filed in the High Court.
Signature……………………………………
OMOLLO ONYANGO & CO. ADVOCATES
Dated at Mombasa this……………..………day of.……………………………………..2019
OMOLLO ONYANGO & COMPANY
ADVOCATES FOR THE APPLICANT
DRAWN & FILED BY:-
OMOLLO ONYANGO & COMPANY
ADVOCATES
DANICHA PLAZA, 3RDFLOOR
APARTMENT 304
P O BOX 54-80109
MTWAPA
TO BE SERVED UPON:-
NJOROGE & KATISYA
ADVOCATES
NSSF BLG, 8TH FLOOR
NKRUMAH ROAD
P.O. BOX 40418-80100
MOMBASA
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT MOMBASA
CIVIL APPEAL NO. OF 2019
ERICA KETA KULUMBA T/A
RISE AND SHINE ACADEMY…………………………………………...…APPELLANT
VERSUS
EZARA MUGERA……………………………………...…………………..RESPONDENT
(Being an appeal from the Judgement and Decree of Justice P. J. O. Otieno, delivered on 19 th
October, 2018 in Civil Appeal No. 54 of 2015, between Erica Keta Kulumba T/A Rise and
Shine Academy –vs- Ezra Mugera)
INDEX
1. Statement of address for service.
2. Memorandum of Appeal.
3. High Court Appeal – 3rd April, 2018.
4. Appellant’s written submissions dated 4th May, 2018
5. Respondent’s written submissions dated 25th May, 2018
6. Judgement delivered on 19th October, 2018.
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT MOMBASA
CIVIL APPEAL NO. OF 2019
ERICA KETA KULUMBA T/A
RISE AND SHINE ACADEMY…………………………………………...…APPELLANT
VERSUS
EZARA MUGERA……………………………………...…………………..RESPONDENT
(Being an appeal from the Judgement and Decree of Justice P. J. O. Otieno, delivered on 19 th
October, 2018 in Civil Appeal No. 54 of 2015, between Erica Keta Kulumba T/A Rise and
Shine Academy –vs- Ezra Mugera)
STATEMENT OF ADDRESS FOR SERVICE
DRAWN & FILED BY:-
OMOLLO ONYANGO & COMPANY
ADVOCATES
DANICHA PLAZA, 3RDFLOOR
APARTMENT 304
P O BOX 54-80109
MTWAPA
TO BE SERVED UPON:-
NJOROGE & KATISYA
ADVOCATES
NSSF BLG, 8TH FLOOR
NKRUMAH ROAD
P.O. BOX 40418-80100
MOMBASA
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT MOMBASA
CIVIL APPEAL NO. OF 2019
ERICA KETA KULUMBA T/A
RISE AND SHINE ACADEMY…………………………………………...…APPELLANT
VERSUS
EZARA MUGERA……………………………………...…………………..RESPONDENT
(Being an appeal from the Judgement and Decree of Justice P. J. O. Otieno, delivered on 19 th
October, 2018 in Civil Appeal No. 54 of 2015, between Erica Keta Kulumba T/A Rise and
Shine Academy –vs- Ezra Mugera)
MEMORANDUM OF APPEAL
The Appellant Erica Keta Kulumba T/A Rise and Shine Academy being aggrieved by all of
the Judgement and Decree of the High Court Judge (Justice P. J. Otieno) hereinabove
mentioned, upholding the Appeal from the Judgement and Decree of the Principal Magistrate
(Hon. S .K. Gicheru) requiring her to pay Kshs. 925, 950/= to the Respondent plus costs and
interest, appeals to this Honourable Court and prefer the following grounds.
1. The first Appellate Court justice erred in law and fact in failing to note that there was no
partnership in existence as the partnership was between the Appellant and Bilha Kabaaga
Mugera automatically dissolved when Bilha Kabaaga Mugera passed on in October,
1993.
2. The first Appellate Court justice erred in law and fact in failing to note that the
agreement dated 31st May, 1999 was null and void as it did not provide for there being a
new partnership between the Appellant and Respondent.
3. The first Appellate Court justice erred in law and fact in failing to note that the
partnership between the Appellant and the deceased was making losses when the
Appellant Rise & Shine Academy was making losses and the Appellant would
communicate the same to the Respondent.
It is proposed that the Honourable Court do:
a) Allow this Appeal.
b) Set aside the Judgement appealed against.
c) The Appellant be awarded costs of the Appeal.
Dated at Mombasa this……………..………day of.……………………………………..2019
OMOLLO ONYANGO & COMPANY
ADVOCATES FOR THE APPLICANT
DRAWN & FILED BY:-
OMOLLO ONYANGO & COMPANY
ADVOCATES
DANICHA PLAZA, 3RDFLOOR
APARTMENT 304
P O BOX 54-80109
MTWAPA
TO BE SERVED UPON:-
NJOROGE & KATISYA
ADVOCATES
NSSF BLG, 8TH FLOOR
NKRUMAH ROAD
P.O. BOX 40418-80100
MOMBASA
