[2012] KECA 169 (KLR)
The court found that the respondent filed and served the record of appeal outside the time limits set by the court's order, without obtaining further leave for extension. The court held that the mandatory procedural rules regarding timelines for filing and serving appeal documents must be strictly observed, and that...
Source-derived case information.
- Citation
- [2012] KECA 169 (KLR)
- Parties
- Appellant: Dishon Ochieng; Respondent: SDA Church, Kodiaga
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) 333 of 2010
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- Appeal struck out for non-compliance with filing and service timelines.
- Legal Topics
- Appeal Striking Out, Extension of Time, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dishon Ochieng
Appellant
SDA Church, Kodiaga
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether the record of appeal was filed and served within the time stipulated by the court's order.
- 2 Whether Section 159 of the Constitution and Sections 3A and 3B of the Appellate Jurisdiction Act can cure non-compliance with the Court of Appeal Rules regarding time limits.
Ratio Decidendi
The court found that the respondent filed and served the record of appeal outside the time limits set by the court's order, without obtaining further leave for extension. The court held that the mandatory procedural rules regarding timelines for filing and serving appeal documents must be strictly observed, and that the general provisions of the Constitution and the Appellate Jurisdiction Act could not be invoked to cure non-compliance with these specific rules. As the delay was admitted and no leave was sought or granted for the late filing and service, the appeal was fatally defective and was struck out.
Court Disposition
Appeal struck out for non-compliance with filing and service timelines.
Orders
- Civil Appeal No. 333 of 2010 is struck out.
- Costs of the motion awarded to the applicant.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI LAW COURTS
Civil Appeal (Application) 333 of 2010
DISHON OCHIENG .................................. APPELLANT/RESPONDENT
AND
SDACHURCH, KODIAGA ....................... RESPONDENT/APPLICANT
(An application to strike out Civil Appeal No 333 of 2010 from a judgment of the High Court of Kenya at Kisumu (Mwera, J) dated 6th March, 2008
in
HCCC NO. 162 OF 2001)
**************
RULING OF THE COURT
SDA Church, Kodiaga, the applicant herein, asks us to strike out Civil Appeal No 333 of 2010 which was lodged against them on 16th December, 2010, by Dishon Ochieng, the respondent herein. The motion to strike out the appeal is brought pursuant to Rule 84 of the Court of Appeal Rules and is premised on two grounds, namely:
“(a)that the record of appeal filed herein was filed and served out of time contrary to the order granting the extension of time to do so.
(b)that the said notice does not indicate that the same was to be served on the 1st defendant in the High Court and there is no indication that he was ever served.”
There is no dispute that the record of appeal was filed three days late, without leave of the Court. By an order of the Court, (Visram, JA, sitting as a single Judge) made on 22nd November, 2010, the respondent was granted leave to file and serve the notice of appeal within seven days of the date of the order (22nd November, 2010) and the record of appeal within fourteen days thereafter. Indeed, the notice of appeal was filed and served within time but the record of appeal was not. It should have been filed and served by the 13th December, 2010, but was filed on 16th December, 2010 – three days late, and was served on 17th December, 2010 – four days late, without leave of the court further extending the time to do so.
These facts are not in dispute, and Mr B. O. Odeny, learned counsel for the respondent, while admitting the delay, simply relied on Section 159 of the Constitution,andSections 3Aand3B of the Appellate Jurisdictions Act to cure the omission. We agree with Mr I. E. N. Okero, learned counsel for the applicant, that these provisions of the law would not help the respondent circumvent the Rules of the Court.
In the event, we allow the notice of motion dated 2nd February, 2011, and lodged in Court on the same date with the result that Civil Appeal No. 333 of 2010 is hereby struck out.
We award the costs of the motion to the applicant but we make no order as to costs of the struck out appeal. Those shall be our orders.
Dated and delivered at Kisumu this 22nd day of March, 2012.
R. S. C. OMOLO
---------------------------
JUDGE OF APPEAL
E. M. GITHINJI
---------------------------
JUDGE OF APPEAL
ALNASHIR VISRAM
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JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR