[2019] KECA 760 (KLR)
The Court found that the appeal was filed out of time and that no application for extension of time had been made. The respondent conceded this fact. The Court held that, in the absence of an application for extension of time, the appeal was incompetent and must be struck out. The Court agreed with the applicant's...
Source-derived case information.
- Citation
- [2019] KECA 760 (KLR)
- Parties
- Applicant: Fredrick Odhiambo Madote; Respondent: Insteel Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) 80 of 2017
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal for Being Filed Out of Time
- Outcome
- Appeal struck out as incompetent for being filed out of time without leave of court.
- Judges
- MSA Makhandia, GK Oenga
- Legal Topics
- Appeal Out of Time, Extension of Time, Striking Out Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Odhiambo Madote
Applicant
Insteel Limited
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal for Being Filed Out of Time
Legal Issues
- 1 Whether the appeal was filed out of time without leave of court.
- 2 Whether the appeal should be struck out for incompetence due to lateness.
Ratio Decidendi
The Court found that the appeal was filed out of time and that no application for extension of time had been made. The respondent conceded this fact. The Court held that, in the absence of an application for extension of time, the appeal was incompetent and must be struck out. The Court agreed with the applicant's submissions and ordered the appeal struck out with costs to the applicant.
Court Disposition
Appeal struck out as incompetent for being filed out of time without leave of court.
Orders
- The appeal is struck out.
- Costs awarded to the applicant (respondent in the appeal).
Full Case Text
Judgment text and source record
31 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: MAKHANDIA, KIAGE & OTIENO-ODEK, JJ.A.)
CIVIL APPEAL (APPLICATION) NO. 80 OF 2017
BETWEEN
FREDRICK ODHIAMBO MADOTE.........APPELLANT/APPLICANT
AND
INSTEEL LIMITED..........................................................RESPONDENT
(Appeal from the judgment and decree of the Employment and Labour Relations Court at Kisumu (Wasilwa, J.)
dated 26th November, 2014
in
CIVIL SUIT NO.141 OF 2013)
*************************
RULING OF THE COURT
By the Notice of Motion dated 21st August, 2017, the applicant Fredrick Madote, applies that the appeal herein be struck out for having been filed out of time.
It is not denied by the respondent that the appeal was indeed filed out of time even though some feeble attempt has been made to explain that default.
Mr. Amule, learned counsel holding brief for Mr. Siganga concedes, as he had to, that the manner for regularizing such defaults and delays is by filing an application for extension of time, but no such application was made.
Given that inevitable concession, and the record being quite clear that the appeal was filed hopelessly out of time, the same is clearly incompetent and we agree with Mr. Otieno, learned counsel for the applicant that the same is for striking out.
It is accordingly struck out with costs to the applicant in the application who is the respondent in this appeal.
Made at Kisumu this 29th day of April, 2019
M. A. MAKHANDIA
.....................................
JUDGE OF APPEAL
P. KIAGE
......................................
JUDGE OF APPEAL
OTIENO-ODEK
.......................................
JUDGE OF APPEAL
I certify that this isa true copy of the original.
DEPUTY REGISTRAR.