[1997] KECA 343 (KLR)
The Court found that the appeal was filed out of time and no leave of the court was sought by the appellant. The appellant did not dispute the late filing. The respondent's application under rule 80 of the Court of Appeal Rules was therefore merited. The Court held that the appeal was incompetent and must be struck...
Source-derived case information.
- Citation
- [1997] KECA 343 (KLR)
- Parties
- Appellant: Corporate Insurance Co. Ltd; Respondent: Hamid Chemicals Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 223 of 1995
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion to Strike Out Appeal
- Outcome
- Appeal struck out as incompetent with costs to the respondent.
- Judges
- RO Kwach, AM Akiwumi, AB Shah
- Legal Topics
- Appeal Striking Out, Out of Time Filing, Leave of Court, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Corporate Insurance Co. Ltd
Appellant
Hamid Chemicals Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion to Strike Out Appeal
Legal Issues
- 1 Whether the appeal was filed out of time without leave of the court.
- 2 Whether the appeal should be struck out as incompetent.
- 3 Whether the respondent is entitled to costs of the appeal and the motion.
Ratio Decidendi
The Court found that the appeal was filed out of time and no leave of the court was sought by the appellant. The appellant did not dispute the late filing. The respondent's application under rule 80 of the Court of Appeal Rules was therefore merited. The Court held that the appeal was incompetent and must be struck out. On the issue of costs, the Court determined that the respondent was entitled to costs of both the appeal and the motion, as the appellant had sufficient time to respond under rule 49 of the Rules of the Court. The Court thus granted the application, struck out the appeal, and awarded costs to the respondent.
Court Disposition
Appeal struck out as incompetent with costs to the respondent.
Orders
- The appeal is struck out as incompetent.
- The respondent is awarded costs of the appeal.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
CORAM: KWACH, TUNOI & SHAH, JJ.A.
CIVIL APPEAL NO. 223 OF 1995
BETWEEN
CORPORATE INSURANCE CO. LTD ...................... APPELLANT
AND
HAMID CHEMICALS LIMITED .......................... RESPONDENT
(Appeal from the Judgment and decree of the High Court of Kenya at Nairobi (Justice G.S. Pall) dated 16th February, 1993 in H.C.C.C. NO. 1824 OF 1987) *************
RULING OF THE COURT
The respondent has taken out a Notice of Motion under rule 80 of the Court of Appeal Rules seeking an order striking out the appeal filed by the appellant on 7th December, 1995, on the ground that it was filed out of time without the leave of the Court being sought. Mrs Maira, for the appellant, does not dispute this except to say that costs should not be granted to the respondent since she was served only last Friday. The motion was filed on 14th February, 1997 and that gives the appellant sufficient time under rule 49 of the Rules of this Court. The application is granted and the appeal is struck out as incompetent with costs to the respondent. The respondent will also have the costs of the motion.
Dated and delivered at Nairobi this 17th day of February, 1997.
R.O. KWACH
.....................
JUDGE OF APPEAL
A.M. AKIWUMI
.....................
JUDGE OF APPEAL
A.B. SHAH
.....................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR