[1997] KECA 69 (KLR)
The Court found that the appeal was filed out of time without the requisite leave of the court, as admitted by the appellant. Under Rule 80 of the Court of Appeal Rules, such an appeal is incompetent and must be struck out. The Court further held that the respondent, having succeeded in the application, is entitled...
Source-derived case information.
- Citation
- [1997] KECA 69 (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
- Civil Appeal 223 of 1995
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- Appeal struck out as incompetent with costs to the respondent.
- Legal Topics
- Appeal Striking Out, Out of Time Filing, Court of Appeal Rules, 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 / Application 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 costs should be awarded to the respondent.
Ratio Decidendi
The Court found that the appeal was filed out of time without the requisite leave of the court, as admitted by the appellant. Under Rule 80 of the Court of Appeal Rules, such an appeal is incompetent and must be struck out. The Court further held that the respondent, having succeeded in the application, is entitled to the costs of both the motion and the struck-out appeal. The appellant's argument regarding late service did not constitute sufficient grounds to deny 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 the costs of the appeal.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAIROBI
Civil Appeal 223 of 1995
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.