[2008] KECA 175 (KLR)
The Court held that in the absence of a notice of appeal, it lacks jurisdiction to entertain the application for leave to amend and substitute parties. The applicant admitted that no notice of appeal was on record and that an application for extension of time to file one was still pending. The Court agreed with the...
Source-derived case information.
- Citation
- [2008] KECA 175 (KLR)
- Parties
- Applicant: Evans Kageche Boro; Respondent: Stanley Munga Githunguri; Respondent: Respondent 2; Respondent: Respondent 3; Respondent: Respondent 4 (deceased); Respondent: Respondent 5 (deceased); Respondent: Respondent 6; Respondent: Respondent 7; Respondent: Respondent 8
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 271 of 2006
- Procedural Posture
- Civil Application / Ruling on Application for Leave to Amend and Substitute Parties
- Outcome
- application struck out for want of jurisdiction
- Judges
- PK Tunoi, AM Githinji
- Legal Topics
- Substitution of Parties, Leave to Amend, Notice of Appeal Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Kageche Boro
Applicant
Stanley Munga Githunguri
Respondent
Respondent 2
Respondent
Respondent 3
Respondent
Respondent 4 (deceased)
Respondent
Respondent 5 (deceased)
Respondent
Respondent 6
Respondent
Respondent 7
Respondent
Respondent 8
Respondent
Procedural Posture
Civil Application / Ruling on Application for Leave to Amend and Substitute Parties
Legal Issues
- 1 Whether the Court has jurisdiction to entertain the application in the absence of a notice of appeal.
- 2 Whether leave to amend and substitute parties can be granted without a notice of appeal on record.
Ratio Decidendi
The Court held that in the absence of a notice of appeal, it lacks jurisdiction to entertain the application for leave to amend and substitute parties. The applicant admitted that no notice of appeal was on record and that an application for extension of time to file one was still pending. The Court agreed with the respondents that without a notice of appeal, the application is incompetent. Consequently, the application, together with a similar application in Civil Application No. Nai. 270 of 2006, was struck out with costs to the 1st, 2nd, and 3rd respondents.
Court Disposition
application struck out for want of jurisdiction
Orders
- The application is struck out as incompetent for want of a notice of appeal.
- Civil Application No. Nai. 270 of 2006 is also struck out.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CIVIL APPLI. NAI NO. 271 OF 2006 (UR 130/2006)
EVANS KAGECHE BORO ………………………………. APPLICANT
AND
STANLEY MUNGA GITHUNGURI & 7 OTHERS........RESPONDENTS
(An application for leave to amend Civil Application No. Nai. 355 of 2004 (UR. 184/04) by substituting deceased respondent number four (4) and number five (5) with their legal representatives in accordance with the substitution order in H.C.C.C. No. 1519 of 1993 Nairobi dated 21st July 2006
in
H.C.C.C. No. 1519 of 1993)
***********************
RULING OF THE COURT
The applicant herein, Evans Kageche Boro, seeks two orders from the Court. First, leave to amend Civil Application No. 355 of 2004 and second, leave to substitute the 4th and 5th respondents with their legal representatives.
The judgment the subject matter of the intended appeal was delivered on 15th July, 2004 by Aluoch, J (as she then was). It is apparent that thereafter several applications were made before the superior court and this Court, some have been disposed of and some are still pending before the two courts.
However, what is clear is that there is no notice of appeal incorporated in the record before us, a fact that Mr. Ritho, counsel for the applicant, admits. His explanation is that he has sought leave of this Court in Civil Application No. 353 of 2004 to lodge one out of time. However, the application thereto has not been disposed of.
Mr. King’ara for the 1st and 2nd respondents submits that in the absence of a notice of appeal we should down our tools and refuse to hear the application since we lack jurisdiction.
We would agree. As there is no notice of appeal, this application together with Civil Application No. Nai. 270 of 2006which contains similar application and in which an order has been made by a learned single judge of this Court that it be heard before the full Court, are incompetent and are hereby both ordered struck out with costs to respondents numbers 1, 2 and 3.
We so order.
Dated and delivered at NAIROBI this 11th day of July, 2008
P. K. TUNOI
………………………
JUDGE OF APPEAL
E. O. O’KUBASU
………………………
JUDGE OF APPEAL
E. M. GITHINJI
………………………
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR.