[2001] KECA 19 (KLR)
The Court of Appeal identified a fundamental jurisdictional issue regarding whether the High Court can, upon application by notice of motion, strike out an appeal. Recognizing that this point was not canvassed in the High Court and that counsel were unprepared to address it, the Court determined that the issue must...
Source-derived case information.
- Citation
- [2001] KECA 19 (KLR)
- Parties
- Applicant: David Morton Silverstein; Respondent: Atsango Chesoni
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 189 of 2001
- Procedural Posture
- Stay Application / Interlocutory
- Outcome
- Motion adjourned for further argument.
- Legal Topics
- Stay of Proceedings, Striking Out Appeal, Notice of Motion, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
David Morton Silverstein
Applicant
Atsango Chesoni
Respondent
Procedural Posture
Stay Application / Interlocutory
Legal Issues
- 1 Whether the High Court has jurisdiction to strike out an appeal on application by notice of motion.
- 2 Under what statutory or case law provisions, if any, can such an application be made in the High Court.
Ratio Decidendi
The Court of Appeal identified a fundamental jurisdictional issue regarding whether the High Court can, upon application by notice of motion, strike out an appeal. Recognizing that this point was not canvassed in the High Court and that counsel were unprepared to address it, the Court determined that the issue must be fully argued before it can assess whether the applicant has an arguable appeal. Consequently, the Court adjourned the motion to allow for comprehensive submissions on the jurisdictional question, emphasizing the need for the matter to be heard by the same bench and on a priority basis.
Court Disposition
Motion adjourned for further argument.
Orders
- The motion is adjourned to a date to be refixed in the registry before the same bench.
- The motion is to be refixed on a priority basis.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CORAM: OMOLO, BOSIRE & O'KUBASU, JJ.A.
CIVIL APPLICATION NO. 189 OF 2001
DAVID MORTON SILVERSTEIN ........................................... APPLICANT
AND
ATSANGO CHESONI .......................................................... RESPONDENT
(An application for stay of proceedings in an intended appeal from a ruling of the High Court of Kenya at Nairobi (Aganyanya & Rimita JJ) dated 26th April, 2001
in
H.C.C.A. NO. 105 OF 2000)
***************
ORDER OF THE COURT
We have raised with counsel the issue of whether there is any provision in the Civil Procedure Act, the rules made thereunder or any other provision, eg. case law, which permits the High Court, on an application made by way of a notice of motion, to strike out an appeal, that is, can a party apply to the High Court on a notice on motion to strike out an appeal and if so, under what provisions? This matter was not raised in the High Court and we appreciate that counsel were not prepared to deal with it. We want the point to be fully argued before us in connection with the issue of whether the applicant has an arguable appeal. We accordingly adjourn the motion to a date to be refixed in the registry and as the matter is partly heard, it will have to be refixed before this particular bench. The motion is to be refixed on a priority basis. The costs of today shall be in the motion.
Made at Nairobi this 5th day of November, 2001.
R. S. C. OMOLO
---------------
JUDGE OF APPEAL
S. E. O. BOSIRE
---------------
JUDGE OF APPEAL
E. O. O'KUBASU
---------------
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR