[2001] KECA 340 (KLR)
The Court found that there was no tangible evidence before it to show that the applicant's advocates did not receive the letter from the respondents' advocates requesting copies of proceedings and judgment. On the face of the letter, it was copied to the applicant's advocates. In the absence of evidence to the...
Source-derived case information.
- Citation
- [2001] KECA 340 (KLR)
- Parties
- Applicant: Duncan Osano (Suing through his father & next friend James Osano); Respondent: Jane Nyambura Mwangi; Respondent: Kibugi Gikuro
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 84 of 2001
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- application dismissed
- Legal Topics
- Notice of Appeal, Record of Appeal Filing, Court of Appeal Rules, Timelines for Appeal, Service of Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Duncan Osano (Suing through his father & next friend James Osano)
Applicant
Jane Nyambura Mwangi
Respondent
Kibugi Gikuro
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the respondents failed to take necessary steps to lodge the record and memorandum of appeal within the prescribed time.
- 2 Whether the applicant was properly served with the letter requesting proceedings and judgment as required under the Court of Appeal Rules.
- 3 Whether the time for lodging the record of appeal had begun to run under rule 81(1) of the Court of Appeal Rules.
Ratio Decidendi
The Court found that there was no tangible evidence before it to show that the applicant's advocates did not receive the letter from the respondents' advocates requesting copies of proceedings and judgment. On the face of the letter, it was copied to the applicant's advocates. In the absence of evidence to the contrary, the respondents were entitled to the benefit of the proviso to rule 81(1) of the Court of Appeal Rules, meaning that the time for lodging the record of appeal had not yet begun to run. Consequently, the application to strike out the notice of appeal was dismissed.
Court Disposition
application dismissed
Orders
- The application to strike out the notice of appeal is dismissed.
- Costs of the application will be costs in the intended appeal.
Full Case Text
Judgment text and source record
11 paragraphs
IN THE COURT OF APPEAL AT NAIROBI CORAM: TUNOI, SHAH & OWUOR, JJ.A CIVIL APPLICATION NO. NAI. 84 OF 2001 BETWEEN
DUNCAN OSANO (Suing through his father & next friend) JAMES OSANO ....................................................APPLICANT AND JANE NYAMBURA MWANGI .............1ST RESPONDENT KIBUGI GIKURO .................................2ND RESPONDENT
(An application to strike out the Notice of Appeal lodged by the Respondent on the 15th March, 2000 against the Judgment of the High Court of Kenya at Nairobi (Ole Keiwua, JA) dated 2nd March, 2000 in H.C.C.C. NO. 2890 OF 1997) ************ RULING OF THE COURT
The applicant has moved this Court under rules 80, 81 and 82 of the Rules of this Court. He seeks an order to strike out the notice of appeal lodged by the respondents on 15th March, 2000. For the applicant, it is urged that the respondents have taken no serious steps to lodge the record and memorandum of appeal. It is also urged that the letter written by the respondents' advocates to the Registrar of the superior court requesting copies of proceedings and judgment was not received by the applicants' advocates. The reference is obviously to the letter dated 14th March, 2001 addressed by M/S Okwach & Company Advocates to the Registrar of the superior court and copied to M/S Njage Nyaboke & Company, Advocates. On the face if the letter is copied to the said advocates. Whether it was received by the said advocate cannot be in issue before us as there is nothing tangible before us to show that the letter might not have been received.
In these circumstances the respondents do have the benefit of the proviso to rule 81(1) of the Rules of this Court. That is to say the time to lodge the record of appeal has not yet begun to run. That being the case we have no alternative but to dismiss this application. It is ordered dismissed. Costs of this application will be costs in the intened appeal.
Dated and delivered at Nairobi this 8th day of October, 2001.
P.K. TUNOI ............................ JUDGE OF APPEAL
A.B. SHAH ........................... JUDGE OF APPEAL
E. OWUOR ........................... JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.