[2000] KECA 335 (KLR)
The Court found that the respondent, having filed a Notice of Appeal but failing to take any further steps to prosecute the appeal and having offered no explanation or opposition to the application, left the Court with no option but to grant the orders sought. The absence of any plausible reason or opposition...
Source-derived case information.
- Citation
- [2000] KECA 335 (KLR)
- Parties
- Applicant: Benrose Fast Food; Respondent: Muranga Properties Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 298 of 1998
- Procedural Posture
- Civil Application / Ruling on Application to Strike Out Notice of Appeal
- Outcome
- Notice of Appeal struck out; costs awarded to applicant.
- Judges
- AM Akiwumi, EO O'Kubasu
- Legal Topics
- Notice of Appeal, Striking Out Proceedings, Appeal Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benrose Fast Food
Applicant
Muranga Properties Ltd
Respondent
Procedural Posture
Civil Application / Ruling on Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the Notice of Appeal filed by the respondent should be struck out for failure to take steps to file the appeal within the prescribed time.
- 2 Whether the absence of opposition or explanation from the respondent justifies granting the application to strike out the Notice of Appeal.
Ratio Decidendi
The Court found that the respondent, having filed a Notice of Appeal but failing to take any further steps to prosecute the appeal and having offered no explanation or opposition to the application, left the Court with no option but to grant the orders sought. The absence of any plausible reason or opposition justified the striking out of the Notice of Appeal. The Court emphasized that procedural rules must be adhered to and that parties who fail to act diligently or respond to applications risk adverse orders, including the striking out of their pleadings or notices. The applicant was therefore entitled to the orders sought, including costs assessed at Kshs.10,000.
Court Disposition
Notice of Appeal struck out; costs awarded to applicant.
Orders
- The Notice of Appeal filed on 23rd October 1997 in H.C.C.C. No.1424 of 1997 is struck out.
- Costs of the application to the applicant assessed at Kshs.10,000.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (CORAM: AKIWUMI, BOSIRE & O'KUBASU JJ.A)
CIVIL APPLICATION NO. NAI 298 OF 1998
BETWEEN
BENROSE FAST FOOD....................................APPLICANT
AND
MURANGA PROPERTIES LTD ..............................RESPONDENT
(An application to strike out Notice of Appeal in the intended appeal from a decision/Ruling of the High Court at Nairobi (Justice Mbito) dated 16th October, 1998
in
H.C.C.C. No.1424 of 1997)
***************
RULING
The respondent Muranga Properties Limited was aggrieved by a ruling of the superior court in its civil case No.1424 of 1997, given on 16th October, 1997, and promptly filed a Notice of Appeal on 23rd October, 1997, declaring its intention to appeal against that decision. However, the respondent has to date not taken steps to file its appeal, and although its counsel was duly served with this application he has neither filed an affidavit in reply nor appeared to oppose the application. In absence of any explanation for that and there being no plausible or any reason to deny the applicant the orders sought in the instant application for order striking out the Notice of Appeal, we have no option but to grant the orders. Accordingly the Notice of Appeal filed on 23rd October 1997 in the above mentioned suit is struck out. Costs of the application to the applicant assessed at Kshs.10,000/=.
Dated and delivered at Nairobi this 17th day of May 2000.
A.M. AKIWUMI
..................
JUDGE OF APPEAL
S.E.O. BOSIRE
.................
JUDGE OF APPEAL
E. O'KUBASU
................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR