[2015] KECA 66 (KLR)
The Court of Appeal held that since the respondent did not appeal the High Court's order granting the appellant leave to file the Notice of Appeal out of time, the respondent could not challenge that order in the present application. Furthermore, the court affirmed that courts possess inherent jurisdiction to deem...
Source-derived case information.
- Citation
- [2015] KECA 66 (KLR)
- Parties
- Appellant: Fred Ben Okoth; Respondent: Equator Bottlers Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 45 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal
- Outcome
- application dismissed with costs
- Judges
- S ole Kantai
- Legal Topics
- Appeal Out of Time, Striking Out Appeal, Jurisdiction of High Court, Leave to Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fred Ben Okoth
Appellant
Equator Bottlers Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal should be struck out for being filed out of time.
- 2 Whether the High Court had jurisdiction to grant leave to file a notice of appeal out of time with retroactive effect.
- 3 Whether the respondent can challenge the High Court's order without appealing it.
Ratio Decidendi
The Court of Appeal held that since the respondent did not appeal the High Court's order granting the appellant leave to file the Notice of Appeal out of time, the respondent could not challenge that order in the present application. Furthermore, the court affirmed that courts possess inherent jurisdiction to deem pleadings already filed as having been filed with leave, as the High Court did in this case. Therefore, the application to strike out the appeal was found to be without merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to strike out the appeal is dismissed with costs.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: W. KARANJA, MARAGA & KANTAI JJ.A)
CIVIL APPEAL NO. 45 OF 2014
BETWEEN
FRED BEN OKOTH …………………… APPELLANT
AND
EQUATOR BOTTLERS LTD .............. RESPONDENT
(An appeal from the judgment- decree of the high court of Kenya at
Kisumu (Chemitei, J.) dated 25th March, 2014 In H.C.C.A. NO. 28 OF 2011)
RULING OF THE COURT
1. We have before us a Notice of Motion dated 3rd September, 2014, brought by the respondent under Sections 3 and 3A of the Appellate Jurisdiction Act and Rule 84 of the Court of Appeal Rules. It seeks the striking out of this appeal on the ground that it is fatally defective.
2. Relying on his affidavit sworn on 3rd September, 2014 In support of that application, Mr. Okero, learned counsel for the respondent submitted that the record of appeal was filed out of time. This is because, although in its ruling of 10th June, 2014 the High Court granted the appellant leave to file the Notice of Appeal out of time under Section 7 of the Appellate Jurisdiction Act, that order stated that the Notice of Appeal that the appellant had earlier on filed was deemed to have been filed with leave. In counsel's view, the High Court had no jurisdiction to grant an order whose operation was to have retroactive effect. That being his view, counsel urged us to find that the Notice of Appeal filed herein is fatally defective. As a consequence, he urged us to find that the record of appeal filed pursuant to that Notice of Appeal is equally defective and the same should be struck out.
3. Opposing the application, Mr. Nyawiri , learned counsel for the respondent submitted that the application is totally misconceived and urged as to dismiss it with costs.
4. We agree with Mr. Nyawiri that the respondent having not appealed against the said High Court order of 10th June 2014 granting the appellant leave to file the Notice of Appeal out of time, it cannot be allowed to challenge that decision in this application. At any rate, in their inherent jurisdiction, courts have jurisdiction to deem pleadings already filed as having been filed with leave as the High Court did in this case. Consequently we find no merit in this application and we accordingly dismiss it with costs.
DATED and delivered at Kisumu this 5th day of March 2015
W.KARANJA
JUDGE OF APPEAL
D.K.MARAGA
JUDGE OF APPEAL
S. Ole KANTAI
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR