[2020] KECA 356 (KLR)
The Court found that the respondents failed to serve the notice of appeal on the applicants as required by Rule 77 of the Court of Appeal Rules and did not take steps to institute an appeal within the prescribed period. There was no evidence that proceedings were applied for, and more than 60 days had elapsed since...
Source-derived case information.
- Citation
- [2020] KECA 356 (KLR)
- Parties
- Applicant: Esther Jelagat Ngeny; Applicant: Christopher Kiplagat Yego; Respondent: Peter Chepkochoi Mitei; Respondent: Barabara Kiprugut Arap Tanui; Respondent: Isaiah Kimuror Tanui
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Application 81 of 2018
- Procedural Posture
- Civil Application / Application to Strike Out or Withdraw Notice of Appeal
- Outcome
- Notice of appeal deemed withdrawn; costs awarded to applicants.
- Judges
- AK Murgor, F Sichale, S ole Kantai
- Legal Topics
- Notice of Appeal, Service of Process, Withdrawal of Appeal, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Jelagat Ngeny
Applicant
Christopher Kiplagat Yego
Applicant
Peter Chepkochoi Mitei
Respondent
Barabara Kiprugut Arap Tanui
Respondent
Isaiah Kimuror Tanui
Respondent
Procedural Posture
Civil Application / Application to Strike Out or Withdraw Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal should be deemed withdrawn for failure to serve and prosecute within the prescribed time.
- 2 Whether the respondents' delay in instituting an appeal is inordinate and unreasonable.
Ratio Decidendi
The Court found that the respondents failed to serve the notice of appeal on the applicants as required by Rule 77 of the Court of Appeal Rules and did not take steps to institute an appeal within the prescribed period. There was no evidence that proceedings were applied for, and more than 60 days had elapsed since the notice of appeal was filed. The Court concluded that the delay was inordinate and unreasonable, and in the absence of compliance with the procedural requirements, the notice of appeal was deemed withdrawn under Rule 83. The applicants were awarded the costs of the Motion.
Court Disposition
Notice of appeal deemed withdrawn; costs awarded to applicants.
Orders
- The notice of appeal is deemed withdrawn under Rule 83 of the Court of Appeal Rules.
- The applicants are awarded the costs of the Motion.
Full Case Text
Judgment text and source record
32 paragraphs
IN THE COURT OF APPEAL
AT ELDORET
(CORAM: MURGOR, SICHALE & KANTAI, JJ.A.)
CIVIL APPLICATION NO. 81 OF 2018
BETWEEN
ESTHER JELAGAT NGENY......................................1STAPPLICANT
CHRISTOPHER KIPLAGAT YEGO ......................2NDAPPLICANT
AND
PETER CHEPKOCHOI MITEI ............................1STRESPONDENT
BARABARA KIPRUGUT ARAP TANUI ............2NDRESPONDENT
ISAIAH KIMUROR TANUI................................3RDRESPONDENT
(An application to strike out or withdraw the notice of appeal from the Ruling of the Environment and Land Court of Kenya at Eldoret (Munyao, J.) dated 26thJune, 2014inE.L.C. No. 193 of 2013)
*****************
RULING OF THE COURT
In a ruling delivered on 26th June, 2014 Munyao Sila, J. struck out theplaint in Environment and Land Court E & L No. 193 of 2013 after findingthat the suit was res judicata, amongst other findings. A notice of appeal dated10th July,2014 was filed in that court but it does not appear as if much followed that action.
The applicants have asked us in the Motion on notice said to be brought under rules 82, 83 and 84 of the rules of this Court and Sections “1A and 1B Civil Procedure Act”to deem the said notice of appeal to have been withdrawn. In grounds in support of the Motion and in an affidavit of the 1st applicant Esther Jelagat Ngeny sworn at Eldoret it is said amongst other things that the respondents have failed to serve the said notice on the applicants; that no appeal has been filed and it is over 60 days since the date of the notice of appeal and the respondents continue to enjoy a stay of execution order granted by the trial court and that delay in instituting an appeal is inordinate and unreasonable.
Rule 77of therules of this Court (“the rules”)requires that a notice of appeal be served within 7 days of its lodgment.
Rule 82ofthe rulesmakes provision for institution of appeals whilerule 83provides for situations where the appellant fails to institute an appeal within the required time.
We are told that the intended appellants have filed a notice of appeal; they did not serve it on the applicants contrary to the rules; there is no evidencethat proceedings were applied for and it is over 60 days since notice of appeal was filed. In the premises we agree with the applicants that the notice of appeal be and is hereby deemed as withdrawn underrule 83 of the rules. The applicants will have costs of the Motion.
Dated and delivered at Nairobi this 7thday of August, 2020.
A.K. MURGOR
…………………………….
JUDGE OF APPEAL
F. SICHALE
…………………………..
JUDGE OF APPEAL
S. ole KANTAI
…………………..……….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR