[2006] KECA 114 (KLR)
The Court found that the respondent, having been notified that the proceedings were ready, failed to take any further steps to file the appeal or demonstrate diligence in pursuing the matter. The respondent's explanation for the delay was unconvincing, and there was no evidence of action taken after subsequent...
Source-derived case information.
- Citation
- [2006] KECA 114 (KLR)
- Parties
- Applicant: Anil Walia; Respondent: Vijay Vir Singh; Respondent: St. Ann Girls Secondary School
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Application 92 of 2006
- Procedural Posture
- Striking Out Application / Ruling on Application to Strike Out Notice of Appeal
- Outcome
- Notice of appeal deemed withdrawn; costs to the applicant.
- Judges
- AM Githinji
- Legal Topics
- Striking Out Notice of Appeal, Delay in Filing Appeal, Withdrawal of Appeal, Appellate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anil Walia
Applicant
Vijay Vir Singh
Respondent
St. Ann Girls Secondary School
Respondent
Procedural Posture
Striking Out Application / Ruling on Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal should be struck out for failure to file the appeal within the prescribed time.
- 2 Whether the respondent demonstrated diligence in pursuing the intended appeal.
Ratio Decidendi
The Court found that the respondent, having been notified that the proceedings were ready, failed to take any further steps to file the appeal or demonstrate diligence in pursuing the matter. The respondent's explanation for the delay was unconvincing, and there was no evidence of action taken after subsequent notification. The respondent's counsel conceded the lack of diligence. The Court concluded that the notice of appeal should not be sustained and ordered that it be deemed withdrawn, with costs to the applicant.
Court Disposition
Notice of appeal deemed withdrawn; costs to the applicant.
Orders
- The notice of appeal dated 26th July 2004 and lodged on 28th July 2004 is deemed withdrawn.
- The costs of this application are awarded to the applicant.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAKURU
Civ Appli 92 of 2006
ANIL WALIA ……………..........................…………………….……………………………..APPLICANT
AND
VIJAY VIR SINGH …………………………...……….............................……...…. 1ST RESPONDENT
ST. ANN GIRLS SECONDARY SCHOOL …………............................……..… 2ND RESPONDENT
(An application for striking out the notice of appeal from the decision of the High Court of Kenya at Nakuru (D. Musinga, J.) delivered on 16th July, 2004
in
H.C.C.C. NO.455 OF 1999)
************
RULING OF THE COURT
This is an application by Anil Walia, expressed to be brought under section 3(2) of the Appellate Jurisdiction Act and Rules 81 and 82 of the Rules of this Court.
The respondent herein having been dissatisfied with the ruling of Musinga Ag J. dated 16th July, 2004, in Nakuru High Court Civil Case No.455 of 1999, lodged a Notice of Appeal, on 28th July 2004, expressing his intention of appealing against that decision. He thereafter applied for copies of proceedings but took no further steps to ensure that his appeal was filed timeously. By a letter dated 14th August 2004, his advocate was advised that copies of proceedings were ready for collection, but although he says in a replying affidavit sworn on 28th August 2006 that his advocates did not receive the letter, we are persuaded by counsel for the applicant Mr. Kahiga that that may not be true since the respondent has not shown what steps he took after receiving a second letter from the Court Registry advising him that proceedings were indeed ready. Clearly the respondent has shown indolence in the pursue of his intended appeal; and it is clear that he does not intend to persue it. That being our view of the matter we do not think the notice of appeal dated 26th July 2004 and lodged in court on 28th July 2004, should be sustained. And as Mr. Mwangi for the respondent concedes that the respondent has indeed not been diligent in pursuing his appeal, the order that commends itself to us is to order which we hereby do that the aforesaid notice of appeal be and is hereby deemed to have been withdrawn. The costs of this application to the applicant.
Dated and delivered at Nakuru this 28th day of September, 2006.
P.K. TUNOI
…………………………
JUDGE OF APPEAL
E.O. O’KUBASU
………………………..
JUDGE OF APPEAL
E.M. GITHINJI
………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR