[2019] KEELC 975 (KLR)
The court found that the appellant failed to file a decree with the record of appeal, a mandatory requirement under the Civil Procedure Rules. The appellant's explanation for the omission was insufficient, as she merely cited her advocate's oversight without providing a substantive justification. Furthermore, the...
Source-derived case information.
- Citation
- [2019] KEELC 975 (KLR)
- Parties
- Appellant: Getrude Okoth (as the Administrator of the Estate of Reuel Okoth Odera – the deceased); Respondent: Kenya Electricity Transmissions Company Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 357 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal
- Outcome
- appeal struck out
- Judges
- TM Olando
- Legal Topics
- Appeal Striking Out, Record of Appeal Requirements, Delay in Filing, Supplementary Record, Certificate of Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Getrude Okoth (as the Administrator of the Estate of Reuel Okoth Odera – the deceased)
Appellant
Kenya Electricity Transmissions Company Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal should be struck out for failure to file a decree with the record of appeal.
- 2 Whether the appeal was filed out of time without leave of court.
- 3 Whether the certificate of delay adequately explained the delay in filing the appeal.
Ratio Decidendi
The court found that the appellant failed to file a decree with the record of appeal, a mandatory requirement under the Civil Procedure Rules. The appellant's explanation for the omission was insufficient, as she merely cited her advocate's oversight without providing a substantive justification. Furthermore, the certificate of delay did not account for the entire period of delay, leaving over 80 days unexplained. The appellant only sought leave to file a supplementary record and enlarge time after the respondent moved to strike out the appeal, demonstrating a lack of diligence. The cumulative effect of these procedural failures and unexplained delays rendered the appeal fatally...
Court Disposition
appeal struck out
Orders
- The appeal is hereby struck out.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELCA CASE NO. 357 OF 2017
GETRUDE OKOTH
(as the Administrator of the Estate of REUEL OKOTH ODERA – the deceased……....……APPELLANT
VERSUS
KENYA ELECTRICITY TRANSMISSIONS COMPANY LIMITED.…………………………RESPONDENT
(AN APPEAL FROM THE JUDGMENT FO THE CHIEF MAGISTRATE’S COURT, KISUMU DELIVERED BY RESIDENT MAGISTRATE M. AGUTU DATED 10TH DECEMBER 2015)
RULING
1. By application dated 11/12/2017, the respondent seeks orders that the appeal be struck out with costs to the respondent.
2. The application is based on the grounds that there is no Decree filed with the Record of Appeal. The Record of Appeal has in any event been filed out of time without the leave of the Honourable Court. The Appellant has neither applied for nor obtained the Decree since the Judgment herein on the 18th December 2015.
3. According to the respondent, the Appellant has not listed the Appeal for directions as is mandatory and that the Appellant’s Certificate of Delay is defective and is also of no relevance to the Appeal in any event.
4. The application is supported by the affidavit of Samuel Rambo the Senior legal officer with the applicant who states that the appeal was read on 18/12/2013 in the presence of the appellant’s advocates and yet no decree has been obtained. It is alleged that the window of appeal closed on 10/2/2016. The appeal is bad in law as there is no decree. The certificate of delay is not relevant. The proceedings were collected on 24/4/2017 and the record of appeal was lodged on 17/7/2017.
5. In her reply, Getrude Okoth states that her advocate inadvertently forgot to apply for and file a decree as requirement under relevant Section of the law. However argues that decree includes judgment. The appellant invokes the provisions of the overriding objectives of the Civil Procedure Act and Article 159 (2) of the Constitution of Kenya 2010. She states that oversight of the advocate should not be visited on the client.
6. I have considered the application and relevant affidavits and rival submissions and do find that the appellants counsel has admitted the mistakes he made in the filing of the appeal and prays that his mistakes should not be visited on his client. This mistakes and blunders are far too many.
7. The Appellant is guilty of delay in applying to file a supplementary record of appeal as she waited until the respondent had filed the application to strike out the appeal on 13/6/2017 to file an application for leave to enlarge time for filing appeal herein out of time and leave to file a supplementary record of Appeal more than one year thereafter.
8. The appellant filed an affidavit with scanty explanation as to why she did not file the appeal in time.
9. The Appellant dwelt on the issues of law in her replying affidavit and does not explain her omissions.
10. The certificate of delay was in respect of the period upto 24/4/2017 that is a period of 198 days but does not cover the period between 24/4/2017 upto 17/7/2017 more than 80 days which are not explained.
11. I do find that the application to strike out the appeal being merited and the appeal is hereby struck out. Costs to the applicant. Orders accordingly.
A .O. OMBWAYO
ENVIRONMENT & LAND
JUDGE
DATED AND DELIVERED THIS 5TH DAY OF NOVEMBER, 2019.
In the presence of:
No appearance for the Appellant
No appearance for the Respondent
A. O. OMBWAYO
ENVIRONMENT & LAND
JUDGE