[2021] KECA 858 (KLR)
The court found that the applicants' motion to strike out the notice and record of appeal was premature because the respondent had already filed an application for enlargement of time to file and serve the appeal documents, which was pending before the court. The court held that it was only fair and procedurally...
Source-derived case information.
- Citation
- [2021] KECA 858 (KLR)
- Parties
- Applicant: Dariya Shinyanzwa; Applicant: Jane Agista Lusimba; Respondent: Josephat Lisiolo Lishenga; Respondent: Khayumbi Inziani t/a Khayumbi & Co. Advocates; Respondent: The Land Registrar Kakamega; Respondent: The Hon. Attorney General
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 61 of 2020
- Procedural Posture
- Civil Application / Ruling on Application to Strike Out Notice and Record of Appeal
- Outcome
- application dismissed
- Judges
- GG Okwengu, GK Oenga
- Legal Topics
- Appeal Timelines, Service of Process, Enlargement of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dariya Shinyanzwa
Applicant
Jane Agista Lusimba
Applicant
Josephat Lisiolo Lishenga
Respondent
Khayumbi Inziani t/a Khayumbi & Co. Advocates
Respondent
The Land Registrar Kakamega
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Civil Application / Ruling on Application to Strike Out Notice and Record of Appeal
Legal Issues
- 1 Whether the notice and record of appeal should be struck out for being filed and served out of time without leave of court.
- 2 Whether the pending application for enlargement of time should be heard before the application to strike out.
Ratio Decidendi
The court found that the applicants' motion to strike out the notice and record of appeal was premature because the respondent had already filed an application for enlargement of time to file and serve the appeal documents, which was pending before the court. The court held that it was only fair and procedurally correct for the respondent's application for enlargement of time, which was filed earlier, to be heard and determined first. As such, the applicants' motion was dismissed to allow the pending application for enlargement of time to be considered.
Court Disposition
application dismissed
Orders
- The applicants' motion dated 17th July, 2020 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
40 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
[CORAM: OKWENGU, KIAGE & SICHALE JJ.A]
CIVIL APPLICATION NO 61 OF 2020
BETWEEN
DARIYA SHINYANZWA................................................1STAPPLICANT
JANE AGISTA LUSIMBA..............................................2NDAPPLICANT
VERSUS
JOSEPHAT LISIOLO
LISHENGAJACKSON
KHAYUMBI INZIANI.................................................1STRESPONDENT
T/A KHAYUMBI & CO. ADVOCATES.....................2NDRESPONDENT
THE LAND REGISTRAR KAKAMEGA......................3RDRESPONDENT
THE HON. ATTORNEY GENERAL ............................4THRESPONDENT
(An application to strike out the notice and record of appeal against the Judgment and order of the High Court of Kenya at Kakamega (N.A Matheka, J.) dated 5thNovember, 2019
in
KAKAMEGA ELC 250 OF 2016)
***************************
RULING OF THE COURT
The application before this Court is a Notice of Motion dated 17th July 2020.
We have noted that in the pleadings, description of parties is a bit mixed up but we are able to establish that the application has been drawn by Dariya ShinyanzwaandJane Agista Lusimba(the Applicants) seeking to have the Notice of Appeal filed by Josephat Lisiolo Lishenga (the 1st Respondent) and dated 5th November, 2019and the Record of Appeal filed thereafter, struck out for having been filed out of time and without leave of Court.
The applicants averred that the Notice of Appeal was not served upon them within 7 days of lodging as provided for in Rules 74 and 76 of the Court of Appeal Rules; that they were not served with a letter bespeaking certified proceedings in accordance with Rules 81 and 82 of the Court of Appeal Rules; that time for service of the Record of Appeal had lapsed; and that there was no plausible explanation as to why the respondent had not served the record of appeal on the applicants’ advocates.
In response, the 1st respondent was steadfast that the Notice of Appeal had not been filed out of time and that he had applied for typed proceedings. He deposed that there was delay on the part of the registry in issuing the typed proceedings and a certificate of delay had been issued to that effect; that he had already filed and served a Record of Appeal and the same should be deemed as having been filed and served. He further deposed that he had filed an application, through a Notice of Motion dated 13th May 2020 seeking leave to file appeal out of time and the same had been served upon the applicants electronically. Theapplication is yet to be given a hearing date.
The parties to the application herein filed their respective submissions.
This Court has considered the Notice of Motion application, Replying Affidavit, the submissions filed by the applicants and the respondent as well as the law. The Court has given due consideration to the fact that the respondent filed an application dated 13th May 2020, seeking leave to file the Appeal out of time andserve his Notice of Appeal dated 5th November, 2019 as well as his Memorandumof Appeal and Record of Appeal upon the applicants herein and that the respondent attached to that application a Draft Memorandum of Appeal. That motion for enlargement of time preceded the present application. The Court is cognizant of the fact that it may not be the respondent’s fault that his Notice of Motion application dated 13th May, 2020 has not been listed for hearing.
On our part, we think that the applicants have jumped the gun by filing the instant application knowing very well that the respondents’ notice of motion for enlargement of time is pending before the court. We think it is only fair that the 1st respondent’s application for enlargement of time which was filed before the applicant’s motion be heard first. Accordingly, the Applicants’ Motion dated17thJuly, 2020is hereby dismissed. We make no order as to costs.
It is so ordered
Dated and delivered at Nairobi this 19thday of March, 2021.
HANNAH OKWENGU
……………………..………………
JUDGE OF APPEAL
P.O. KIAGE
…………………………………….
JUDGE OF APPEAL
F.SICHALE
…………………………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR