[2016] KEELC 308 (KLR)
The court found that the 1st Respondent, despite being notified that the certified proceedings and judgment were ready, failed to collect them and did not file the Record of Appeal. The 1st Respondent also failed to respond to the Application to strike out the Notice of Appeal. The court concluded that the 1st...
Source-derived case information.
- Citation
- [2016] KEELC 308 (KLR)
- Parties
- Applicant: Beachbay Holdings Ltd; Respondent: Ratim Relators Ltd; Respondent: The Commissioner of Lands; Respondent: The Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 11 of 2011
- Procedural Posture
- Constitutional Petition / Ruling on Application to Strike Out Notice of Appeal
- Outcome
- application allowed
- Judges
- OA Angote
- Legal Topics
- Notice of Appeal Striking Out, Delay in Filing Appeal, Vacant Possession Orders, Constitutional Rights Land, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Beachbay Holdings Ltd
Applicant
Ratim Relators Ltd
Respondent
The Commissioner of Lands
Respondent
The Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the Notice of Appeal should be struck out for inordinate delay in filing the Record of Appeal.
- 2 Whether the 1st Respondent has demonstrated interest in pursuing the appeal.
- 3 Whether the Applicant is entitled to finality of litigation and enforcement of judgment.
Ratio Decidendi
The court found that the 1st Respondent, despite being notified that the certified proceedings and judgment were ready, failed to collect them and did not file the Record of Appeal. The 1st Respondent also failed to respond to the Application to strike out the Notice of Appeal. The court concluded that the 1st Respondent was not interested in pursuing the appeal and that the delay was inordinate and unexplained. In the interests of justice and finality of litigation, the court allowed the Application and struck out the Notice of Appeal, thereby enabling the Applicant to enforce the judgment and decree for vacant possession.
Court Disposition
application allowed
Orders
- The Notice of Appeal is struck out.
- Costs of the Application are awarded as prayed.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC PETITION NO. 11 OF 2011
IN THE MATTER OF: ARTICLES 21, 22 AND 23 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 40, 47, 60, 64, 65 AND232 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: THE CONSTITUTION OF KENYA SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL HIGH COURT PRACTICE RULES, 2006
BETWEEN
BEACHBAY HOLDINGS LTD................................................PETITIONER
AND
1. RATIM RELATORS LTD
2. THE COMMISSIONER OF LANDS
3. THE ATTORNEY GENERAL........................................RESPONDENTS
R U L I N G
1. The Application before me is the one dated 11th August, 2016. In the Application, the Petitioner is seeking for the following orders:-
(a) THAT the Notice of Appeal herein be struck out.
(b) THAT costs be provided for.
2. The Application is premised on the ground that since the filing of the Notice of Appeal, the 1st Respondent has never preferred an appeal; that the Applicant is anxious at the fate of the intended Appeal and that this matter ought to be settled once and for all.
4. The Application is supported by the Affidavit of David Pola who has deponed that although the court typed the proceedings and judgment, the Respondent has not bothered to collect a certified copy of the proceedings; that there is no reasonable explanation for the inordinate delay in the preparation of the Record of Appeal and that the said Notice of Appeal should be struck out.
5. Although the 1st Respondent was served with the Application, it did not file and pleadings opposing the Application.
5. In his oral submissions, the Applicant's advocate reiterated what is in the body of the Application.
6. This court delivered its Judgment in this matter on 6th March 2014. In the Judgment and the Decree, the court ordered the 1st Respondent to give vacant possession of portion numbers 10836 and 10837.
7. The 1st Respondent subsequently filed an Application for stay of execution pending the hearing and determination of the appeal, which Application was allowed by this court.
8. Although the 1st Respondent's counsel was notified by the Deputy Registrar vide a letter dated 2nd August, 2016 that the certified proceedings and Judgment were ready for collection, the 1st Respondent has never filed the Record of Appeal upto date.
9. It would appear from the record that the 1st Respondent is not interested in pursuing its appeal.
10. Having failed to respond to the Application, and in view of what I have observed above, I allow the Application dated 11th August, 2016 as prayed.
Dated, signed and delivered in Malindi this14th day of November,2016.
O. A. Angote
Judge