[2018] KECA 496 (KLR)
The court found that the notice of appeal was not filed within the mandatory 30-day period required by section 85A(1)(a) of the Elections Act and Rule 8(5) of the Court of Appeal Election Appeal Rules. The appellant, through counsel, conceded to this non-compliance. As a result, the court struck out the notice of...
Source-derived case information.
- Citation
- [2018] KECA 496 (KLR)
- Parties
- Appellant: David Kerario Marwa; Respondent: Boaz Awiti Okoth; Respondent: The Clerk, Migori County Assembly; Respondent: George Okinyi Omamba
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 3 of 2018
- Procedural Posture
- Election Petition / Order on Notice to Show Cause Regarding Striking Out of Notice of Appeal
- Outcome
- Notice of appeal struck out for being filed out of time, with no order as to costs.
- Judges
- AM Githinji, GG Okwengu, A Mohammed
- Legal Topics
- Notice of Appeal, Election Appeals, Timeliness of Filing, Striking Out Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Kerario Marwa
Appellant
Boaz Awiti Okoth
Respondent
The Clerk, Migori County Assembly
Respondent
George Okinyi Omamba
Respondent
Procedural Posture
Election Petition / Order on Notice to Show Cause Regarding Striking Out of Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal was filed within the statutory period prescribed by section 85A(1)(a) of the Elections Act and Rule 8(5) of the Court of Appeal Election Appeal Rules.
- 2 Whether the notice of appeal should be struck out for non-compliance with the statutory timeline.
Ratio Decidendi
The court found that the notice of appeal was not filed within the mandatory 30-day period required by section 85A(1)(a) of the Elections Act and Rule 8(5) of the Court of Appeal Election Appeal Rules. The appellant, through counsel, conceded to this non-compliance. As a result, the court struck out the notice of appeal for being filed out of time, with no order as to costs, as there was no opposition from the respondents and no request for costs.
Court Disposition
Notice of appeal struck out for being filed out of time, with no order as to costs.
Orders
- The Notice of Appeal dated 31st January, 2018 and lodged by David Kerario Marwa is struck out with no orders as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: E.M.GITHINJI, HANNAH OKWENGU &
J. MOHAMMED, JJ.A.)
CIVIL APPEAL ELECTION PETITION NO. 3 OF 2018
BETWEEN
DAVID KERARIO MARWA....................................................APPELLANT
AND
BOAZ AWITI OKOTH..................................................1ST RESPONDENT
THE CLERK, MIGORI COUNTY ASSEMBLY........2ND RESPONDENT
GEORGE OKINYI OMAMBA.....................................3RD RESPONDENT
(Being Notice to show cause why the Notice of Appeal should not be struck out under Section 85 A (1) (a) of the Election Act and Rule 83 of the Court of Appeal Rulesin Election Petition Civil Appeal No. 3 Of 2018)
*********************************************
ORDER OF THE COURT
As no appeal was filed within the 30 days stipulated by section 85 A (1) (a) of the Elections Act as read with Rule 8(5) of the Court of Appeal Election Appeal Rules, and as Ms. Momanyi, learned counsel for intended appellant concedes that the notice of appeal be stuck out with no order as to costs, the Notice of Appeal dated 31st January, 2018 and lodged by David Kerario Marwa is struck out with no orders as to costs.
Made at Kisumu this 19th day of June, 2018.
E. M. GITHINJI
…………………………..
JUDGE OF APPEAL
HANNAH OKWENGU
……………………………..
JUDGE OF APPEAL
J. MOHAMMED
……………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original
DEPUTY REGISTRAR