[2003] KECA 147 (KLR)
The Court found that the respondent's notice of appeal was lodged out of time, as it was filed on 20th February, 1993, while the judgment was delivered on 21st January, 1993. The respondent's attempt to seek an extension of time was unsuccessful, and no proper steps were taken to lodge the appeal itself. The...
Source-derived case information.
- Citation
- [2003] KECA 147 (KLR)
- Parties
- Applicant: Dorcas Mbeneka; Respondent: Priscilla Ndululu; Respondent: The Public Trustee
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 29 of 2002
- Procedural Posture
- Civil Application / Ruling on Application to Strike Out Notice of Appeal
- Outcome
- Application allowed. Notice of appeal struck out. Costs awarded to applicant.
- Legal Topics
- Notice of Appeal, Extension of Time, Striking Out Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dorcas Mbeneka
Applicant
Priscilla Ndululu
Respondent
The Public Trustee
Respondent
Procedural Posture
Civil Application / Ruling on Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal was lodged within the prescribed time period.
- 2 Whether the respondent took proper steps to lodge the appeal.
- 3 Whether the notice of appeal should be struck out for being out of time.
Ratio Decidendi
The Court found that the respondent's notice of appeal was lodged out of time, as it was filed on 20th February, 1993, while the judgment was delivered on 21st January, 1993. The respondent's attempt to seek an extension of time was unsuccessful, and no proper steps were taken to lodge the appeal itself. The respondent did not appear to defend the application. Consequently, the Court held that the notice of appeal was incompetent and ordered it to be struck out, awarding costs to the applicant.
Court Disposition
Application allowed. Notice of appeal struck out. Costs awarded to applicant.
Orders
- The notice of appeal lodged by the respondent on 20th February, 1993 is struck out.
- The applicant will have costs of this application.
Full Case Text
Judgment text and source record
17 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CORAM: SHAH, BOSIRE & OWUOR, JJ.A
CIVIL APPLICATION NO. NAI. 29 OF 2002
BETWEEN
DORCAS MBENEKA……………………………………………………APPLICANT
AND
1. PRISCILLA NDULULU
2. THE PUBLIC TRUSTEE…………….……......……………………RESPONDENT
RULING OF THE COURT
The judgment, the respondent sought to appeal against, was delivered on 21st January, 1993 . The notice of appeal was lodged on 20th February, 1993. It was clearly lodged out of time. The attempt by the respondent to have the time for lodgment of the said notice of appeal was not success ful. The respondent has taken no proper steps to lodge the appeal itself. The respondent, though served, is not here to defend the application. In these circumstances the notice of appeal lodged by the respondent on 20th February, 1993 is struck out. The applicant will have costs of this application.
Dated and delivered at Nairobi this 24 th day of March, 2003.
A.B. SHAH ……………………… JUDGE OF APPEAL
S.E.O. BOSIRE ……………………… JUDGE OF APPEAL
E. OWUOR ……………………… JUDGE OF APPEAL
I certify that this is a
true copy of the original. DEPUTY REGISTRAR.