[1996] KECA 185 (KLR)
The Court found that the Notice of Appeal was not served on the respondent within the mandatory 7-day period as required by Rule 76 of the Court of Appeal Rules. There was no affidavit in reply or opposition from the respondent to dispute this fact. The breach of this mandatory procedural rule was sufficient to...
Source-derived case information.
- Citation
- [1996] KECA 185 (KLR)
- Parties
- Applicant: Diamond Trust of (K) Ltd.; Respondent: Peter Odero Oor; Respondent: Maq's Motor Sales Ltd.
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 291 of 1996
- Procedural Posture
- Civil Appeal / Application to Strike Out Notice of Appeal
- Outcome
- Notice of Appeal struck out for non-compliance with mandatory service requirements.
- Legal Topics
- Notice of Appeal, Service of Process, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Diamond Trust of (K) Ltd.
Applicant
Peter Odero Oor
Respondent
Maq's Motor Sales Ltd.
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the Notice of Appeal should be struck out for failure to serve it on the respondent within the prescribed 7 days under Rule 76 of the Court of Appeal Rules.
Ratio Decidendi
The Court found that the Notice of Appeal was not served on the respondent within the mandatory 7-day period as required by Rule 76 of the Court of Appeal Rules. There was no affidavit in reply or opposition from the respondent to dispute this fact. The breach of this mandatory procedural rule was sufficient to warrant the striking out of the Notice of Appeal. The Court also noted that the parties to the application were wrongly described, and therefore, made no order as to costs.
Court Disposition
Notice of Appeal struck out for non-compliance with mandatory service requirements.
Orders
- The Notice of Appeal filed on 31st January, 1996 is hereby struck out.
- There will be no order as to costs.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT KISUMU (CORAM: KWACH, OMOLO & LAKHA, JJ.A.) CIVIL APPEAL NO. 291 OF 1996BETWEEN
DIAMOND TRUST OF (K) LTD. ..............................APPLICANT AND PETER ODERO OOR MAQ'S MOTOR SALES LTD. ..........................RESPONDENTS
(Appeal from the ruling of the High Court of Kenya at Kisumu (Justice Wambiliangah) dated 30th January, 1996 in H.C.C.C. NO. 367 OF 1995) ***************R U L I N G This is an application to strike out the Notice of Appeal on the ground that the Notice was never served upon the Respondent within 7 days from the date of the filing. This is deponed to in the affidavit in support. There is no affidavit in Reply or in opposition. There is a breach of mandatory provision being Rule 76 of the Rules of this Court. Accordingly, the Notice of Appeal filed on 31st January, 1996 is hereby struck out. The parties to this application were wrongly described and in the circumstances there will be no order as to costs.
Made at Kisumu this 22nd day of November, 1996.
R.O. KWACH ................ JUDGE OF APPEAL R.S.C. OMOLO ................ JUDGE OF APPEAL A.A. LAKHA ................ JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR