[1995] KECA 66 (KLR)
The Court found that the appellant had failed to serve the Notice of Appeal and the record of appeal on the respondent within the time prescribed by the Court of Appeal Rules. The appellant conceded these failures and had not made any application for extension of time. The Court held that such procedural lapses are...
Source-derived case information.
- Citation
- [1995] KECA 66 (KLR)
- Parties
- Appellant: Augustino Mwai; Respondent: Okumu Ndede
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 42 of 1995
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal
- Outcome
- Appeal struck out with costs to the respondent.
- Judges
- AM Akiwumi
- Legal Topics
- Appeal Striking Out, Service of Notice, Extension of Time, Record of Appeal Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Augustino Mwai
Appellant
Okumu Ndede
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal should be struck out for failure to serve the Notice of Appeal and the record of appeal within the prescribed time.
- 2 Whether the absence of an application for extension of time to serve the Notice of Appeal is fatal to the appeal.
Ratio Decidendi
The Court found that the appellant had failed to serve the Notice of Appeal and the record of appeal on the respondent within the time prescribed by the Court of Appeal Rules. The appellant conceded these failures and had not made any application for extension of time. The Court held that such procedural lapses are fatal to the appeal and that the appeal must be struck out. The application to strike out the appeal was therefore allowed with costs to the respondent.
Court Disposition
Appeal struck out with costs to the respondent.
Orders
- The appeal is struck out.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OMOLO, AKIWUMI & TUNOI, JJ.A.)
CIVIL APPEAL NO. 42 OF 1995
BETWEEN
AUGUSTINO MWAI…….…………..…….….APPELLANT
AND
OKUMU NDEDE………..……….…………RESPONDENT
(Appeal from the judgment of the High Court of Kenya at Nairobi (Justice Dugdale) dated the 27th day of October, 1994
in
H.C.C.C. NO. 5478 OF 1991)
************************
RULING OF THE COURT
The application to strike out the appeal must succeed. It is conceded by the appellants that the Notice of Appeal was served on the respondent out of time and that upto now, no application has been made to extend the time within which service of the Notice of Appeal may be served on the respondent. It is also conceded that the respondent was not served with the record of appeal within time and that on the 19th October, 1995, and without leave, the record of appeal was posted to the respondent. This will not do. It is also note worthy that the application to strike out was filed and served as far back as in June, 1995. The application as we have intimated, succeeds with costs for the respondent. It is so ordered.
Dated and delivered at Nairobi this 25th day of October, 1995.
R. S. OMOLO
………………………
JUDGE OF APPEAL
A. M. AKIWUMI
………………………
JUDGE OF APPEAL
P. K. TUNOI
………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR