[2002] KECA 115 (KLR)
The court held that the respondent failed to serve the notice of appeal within the prescribed time and did not seek an extension of time to regularize the late service. The excuse that a signed copy was required was rejected, as a stamped copy is sufficient for service. Consequently, the notice of appeal was struck...
Source-derived case information.
- Citation
- [2002] KECA 115 (KLR)
- Parties
- Applicant: Elizabeth Cheruiyot; Respondent: Hudson Wanambisi Kamulamba
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 429 of 2001
- Procedural Posture
- Civil Miscellaneous Application / Ruling on Application to Strike Out Notice of Appeal
- Outcome
- Notice of appeal struck out; costs to applicant; stay order vacated.
- Judges
- AB Shah, D Ole Keiwua
- Legal Topics
- Service of Process, Notice of Appeal, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Cheruiyot
Applicant
Hudson Wanambisi Kamulamba
Respondent
Procedural Posture
Civil Miscellaneous Application / Ruling on Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal served out of time without extension renders the appeal incompetent.
- 2 Whether service of a stamped copy of the notice of appeal suffices for timely service.
Ratio Decidendi
The court held that the respondent failed to serve the notice of appeal within the prescribed time and did not seek an extension of time to regularize the late service. The excuse that a signed copy was required was rejected, as a stamped copy is sufficient for service. Consequently, the notice of appeal was struck out for non-compliance with the rules regarding timely service.
Court Disposition
Notice of appeal struck out; costs to applicant; stay order vacated.
Orders
- The notice of appeal is struck out.
- The applicant will have costs of this application.
Full Case Text
Judgment text and source record
21 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CIVIL DIVISION
CIVIL MISC APPL NO. 429 OF 2001
ELIZABETH CHERUIYOT.................................................................... APPLICANT
AND
HUDSON WANAMBISI KAMULAMBA.......................................... RESPONDENT
RULING OF THE COURT
The Notice of Appeal lodged by the respondent on 1st December, 2001 was not served on the applicant's advocates until 18th December, 2001 some 11 days out of time. Upto now there has been no application for extension of time to deem the service as having been done in time. Ms. Sitati argued that the service of the notice of appeal was not effected in time as she could not get a signed copy of the notice of appeal in good time. It is not necessary to wait till the superior Court Registrar signs the notice of appeal in order to serve a copy thereof on the respondent. A stamped copy can be served. In these circumstances, the Notice of appeal ought to be struck out. It is ordered struck out. The applicant will have costs of this application. We need not go into other issues raised by Mr. Katwa for the applicant. We also order that the stay order granted by this Court on 16th March, 2001 is hereby vacated.
Dated and delivered at Nairobi this 23rd day of April, 2002.
P.K. TUNOI
..................
JUDGE OF APPEAL
A.B. SHAH
....................
JUDGE OF APPEAL
M. Ole KEIWUA
....................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR